Summary
In Koontz, supra, 193 Cal.App.4th at ___, 122 Cal.Rptr.3d 705 the court dealt with this problem by invoking People v. Harvey (1979) 25 Cal.3d 754, 758, 159 Cal.Rptr. 696, 602 P.2d 396 (Harvey), which held that where a plea bargain called for the dismissal of a prior conviction enhancement, it implicitly reflected an understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed [prior conviction enhancement].
Summary of this case from People v. LaraOpinion
Nos. B224697, B224701.
March 2, 2011. Modified date March 23, 2011 REVIEW GRANTED May 18, 2011
Appeal from the Superior Court of Ventura County, Nos. 2009029278 and 2009002554, Bruce A. Young, Judge.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789, 917 P.2d 628] ( Romero), our Supreme Court held that a sentencing court's failure to exercise discretion pursuant to Penal Code section 1385 is an abuse of discretion because it mistakenly believes it lacks authority to exercise such discretion. ( 13 Cal.4th at p. 530, fn. 13.) This is a similar case. We hold that section 1385 vests trial courts with the discretion to strike a prior serious felony conviction in order to afford the maximum allowable presentence section 4019 conduct credits. We remand to the trial court to determine whether the defendant should be awarded such credits (§ 4019, former subds. (b)(1) (c)(1)).
All statutory references are to the Penal Code.
In exchange for an indicated three-year sentence, Trevor Lee Koontz pled guilty to felony child endangerment (§ 273a, subd. (a)), and admitted a prior serious felony conviction (§§ 667, subds. (c)(1) (e)(1), 1170.12, subds. (a)(1) (c)(1)) and two prior prison terms (§ 667.5, subd. (b)). The trial court struck the prior serious felony conviction and a prior prison term. On March 16, 2010, it sentenced appellant to three years in state prison. The court awarded 219 days' actual credit and 108 days' conduct credit (§ 4019, former subds. (b)(2) (c)(2)) but ruled that appellant was not eligible to receive one-for-one conduct credits (an additional 108 days' conduct credit) due to the prior serious felony strike conviction.
Appellant elected not to withdraw his plea but argued that the order striking the prior conviction entitled him to "one-for-one credits under PC 4019, as it's currently written." In denying the request, the trial court stated: "I did take a look at the Code section [(§ 4019)] again. If it satisfies you, I will confess . . . that it continues to be subject to interpretation . . ., but that's how I read the Code, sir."
Effective January 25, 2010, section 4019 was amended to provide that certain defendants may earn presentence credit at the rate of two days for every two days in custody, commonly referred to as "one-for-one credits." The Legislature said: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody, except that a term of six days will be deemed to have been served for every four days spent in actual custody for persons described in paragraph (2) of subdivision (b) or (c)." (§ 4019, former subd. (f)-) Thereafter on September 28, 2010, the Legislature deleted section 4019 "one-for-one" credits.
In our view, the January 25, 2010 version of section 4019 mitigates punishment by reducing the period of imprisonment. (See In re Estrada (1965) 63 Cal.2d 740, 748 [ 48 Cal.Rptr. 172, 408 P.2d 948].) A prisoner released from prison one day sooner has been punished one day less in prison. (See People v. Hunter (1977) 68 Cal.App.3d 389, 392-393 [ 137 Cal.Rptr. 299] [amendment to § 2900.5 allowing presentence custody credits lessens punishment within meaning of Estrada]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [ 150 Cal.Rptr. 61] [same].)
The Attorney General argues that section 1385 only permits a trial court to strike the "additional punishment" aspect of a prior conviction enhancement and that the denial of presentence one-for-one conduct credits is not "additional punishment" because the sentence remains the same. We believe, however, that section 1385, subdivision (a), vests a trial court with the discretion to strike a prior serious felony conviction enhancement for section 4019 sentencing purposes. (See Romero, supra, 13 Cal.4th at p. 508; People v. Burke (1956) 47 Cal.2d 45, 51 [ 301 P.2d 241].)
In In re Pacheco (2007) 155 Cal.App.4th 1439 [ 66 Cal.Rptr.3d 799], the defendant pled guilty to corporal injury on a cohabitant (§ 273.5, subd. (a)) and admitted a great bodily injury (GBI) enhancement (§ 12022.7). The trial court struck the GBI enhancement for additional punishment purposes (§ 1385, subd. (c)(1)) and sentenced the defendant to three years in state prison. The Department of Corrections and Rehabilitation, in calculating the defendant's release date, limited the defendant's worktime credits to 15 percent based on section 2933.1 because the GBI elevated the conviction to a violent felony offense. The defendant filed a habeas corpus petition. We denied writ relief on the ground that "the sentencing court struck only the punishment for the GBI enhancement, and not the enhancement in its entirety . . ." pursuant to section 1385, subdivision (c)(1). ( Pacheco, at p. 1442.) "Having decided to afford leniency in this case, the sentencing court had two options. It could either strike the enhancement allegation in its entirety or strike the additional three-year punishment for the enhancement specified in section 12022.7, subdivision (a). Here, the trial court chose the latter option." ( Id., at p. 1444.) Implicit in the Pacheco analysis is that section 1385 vests trial courts with the discretion to strike a prior conviction for different sentencing purposes. "The power to strike or dismiss the proceeding as to a prior conviction is within the power referred to in section 1385 of the Penal Code . . . The authority to dismiss the whole includes, of course, the power to dismiss or `strike out' a part. [Citation.]" ( People v. Burke, supra, 47 Cal.2d at p. 51.)
Section 4019 eligibility factors do not trump a sentencing court's discretionary power to strike a prior serious felony conviction for a specific sentencing consideration, i.e., to afford presentence conduct credits. The Supreme Court's opinion in People v. Lo Cicero (1969) 71 Cal.2d 1186 [ 80 Cal.Rptr. 913, 459 P.2d 241], compels this result. There the court held that ineligibility for probation based on a prior conviction "is equivalent to an increase in penalty . . . ." ( Id., at p. 1193.) Because ineligibility for probation is an increase in punishment, ineligibility for additional presentence custody credit is also an increase in punishment.
The trial court acknowledged that section 4019 is "not case-specific as to what we do with this [prior conviction]. So, even though we are striking this [prior conviction], the fact of the matter is he has a strike from 1997, which does not make him eligible for that." The plea agreement, however, did not include a Harvey waiver ( People v. Harvey (1979) 25 Cal.3d 754 [ 159 Cal.Rptr. 696, 602 P.2d 396]) permitting the trial court to consider facts relating to the prior serious felony conviction allegation.
Citing In re Varnell (2003) 30 Cal.4th 1132, 1137 [ 135 Cal.Rptr.2d 619, 70 P.3d 1037], the Attorney General argues that only an "action" — i.e., a fact that must be pled and proven — may be stricken pursuant to section 1385. Here, the prior serious felony conviction was pleaded and proved. The trial court struck the prior serious felony conviction based on a written plea agreement that lacked a Harvey waiver and made no mention of one-for-one presentence conduct credits. "Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed [prior conviction enhancement]." ( People v. Harvey, supra, 25 Cal.3d at p. 758.)
The Legislature, in enacting the January 25, 2010 version of section 4019, presumably was aware that section 1385 vests sentencing courts with the discretion to strike a prior serious felony conviction to afford maximum presentence conduct credits. Our review is limited to determining whether the trial court abused its discretion by not exercising it. ( People v. Carmony (2004) 33 Cal.4th 367, 375-376 [ 14 Cal.Rptr.3d 880, 92 P.3d 369].) It is for the trial court to decide whether, in the interests of justice, the prior conviction should be stricken for purposes of awarding section 4019 one-for-one conduct credits. If the Legislature disagrees, it may amend section 1385 to provide that it may not be utilized for this purpose. Nothing in the January 25, 2010 version shows a "`clear legislative direction'" that section 1385 may not be utilized to afford relief in the present case. ( Romero, supra, 13 Cal.4th at p. 518.) The Legislature knows how to curtail trial court use of section 1385. (See §§ 1385, subd. (b), 1385.1.)
We publish this opinion for several reasons. First and foremost, it meets the standards for publication even though there are an abundance of credit cases extant. It is true that there will not be an extended "shelf life" for what is sure to be called a "Koontz motion" because the Legislature's largesse section 4019 of "one-for-one" credits was superseded eight months later. But the trial courts need guidance for there is sure to be a flurry of defendants and petitioners seeking such credits for presentence time served between January 25, 2010, and September 25, 2010. We leave the mathematical computations to the trial court. We also observe that both in the trial court and on appeal, this matter was limited solely to section 4019. We need not, and do not, consider the September 25, 2011 amendments to section 2933, subdivisions (e)(1) and (e)(3).
We use this opinion as a message to the Legislature. (Witkin, Manual on Appellate Court Opinions (1977) § 88, pp. 160-162.) Simply changing the text of the amended statute will not be deemed a "clear legislative direction" to remove section 1385 discretion without a concomitant amendment to section 1385. There is a rational argument that the last sentence of former section 4019, subdivision (0 (p. `54, ante) declares legislative intent to deny maximum credits for a person who has suffered a prior serious felony conviction. But this section does not purport to remove section 1385 from the sentencing court's consideration. We do not shrink from our duty to decide this dispute but an appellate court should not have to "fill in the blanks" unless it has no other choice. We resolve this issue in favor of the grant of broad discretion to the sentencing courts. The Legislature knows, or should know, of the rule and rationale of Romero, supra, 13 Cal.4th 497, and how to remove section 1385 from consideration at probation and sentencing. We are ever hopeful that the Legislature will heed this respectful suggestion in the drafting of future statutes.
We remand to the trial court to determine whether, pursuant to section 1385, the prior serious felony conviction should be stricken for purposes of awarding section 4019 "one-for-one" presentence conduct credits. We express no opinion on whether the trial court should do so. If the prior serious felony conviction is stricken for section 4019 sentencing purposes, the trial court is directed to award additional presentence credits, and to prepare and send an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
Gilbert, P. J., and Coffee, J., concurred.