Opinion
H035363
08-03-2011
THE PEOPLE, Plaintiff and Respondent, v. MARC LOCHARD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC936678)
1. INTRODUCTION
Defendant Marc Lochard was arrested on March 5, 2009 and charged with two counts of selling methamphetamine (Health & Saf. Code, § 11379) with prior convictions for the serious felony of first degree burglary (Pen. Code, §§ 459, 667, subds. (b)-(i), 1170.12) and narcotics possession (Health & Saf. Code, § 11370.2, subd. (c)) which resulted in prior prison terms (§ 667.5, subd. (b)). He accepted a court offer of a maximum sentence of six years if the court were to deny his anticipated motion to strike his prior serious felony conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He pleaded no contest to the charges and admitted the prior convictions. The court later granted his motion to strike the prior strike. On March 5, 2010, defendant was sentenced to prison for the midterm of three years on count 1 with a concurrent term of three years on count 2. The sentencing court struck all enhancements pursuant to section 1385 and awarded defendant custody credits of 366 days pursuant to section 2900.5 and 182 days of conduct credits pursuant to section 4019.
Unspecified section references are to the Penal Code.
Section 4019 was amended in 2009 to allow for extra conduct credits effective January 25, 2010, 326 days after defendant's arrest, 38 days after his Romero motion was granted, and 39 days before his sentencing. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, p. 4428.) By its terms the amendment was inapplicable to prisoners with "a prior conviction for a serious felony, as defined in Section 1192.7." (Former § 4019, subds. (b)(2), (c)(2).)
Notwithstanding the word "prisoner" connoting someone imprisoned in a state prison, this opinion will conform to the usage of "prisoner" in section 4019 to refer also to a person confined in local custody.
On appeal defendant urges that the amendment is retroactive and asks for a remand to give the trial court an opportunity to strike his strike, not only for Three Strikes sentencing purposes, but also to allow additional conduct credits under amended section 4019. The parties agree that when the trial court granted defendant's Romero motion, it did not strike the prior strike in applying section 4019. The Attorney General disputes the retroactivity of the amendment and, relying on In re Varnell (2003) 30 Cal.4th 1132 (Varnell), contends that trial courts lack authority to strike strikes for purposes of section 4019. After concluding that the trial court's authority under section 1385 does not extend to striking prior convictions for conduct credit purposes, we will affirm the judgment.
2. PROCEEDINGS
After defendant sold methamphetamine to an undercover police officer on February 13 and 17, 2009, he was arrested and charged as described in the introduction. Pursuant to a court offer, on September 28, 2009, defendant pleaded no contest to both charges and admitted the prior convictions and prison terms on the condition that his maximum sentence would be six years even if the court were to deny his anticipated Romero motion. Prior to sentencing, at a hearing on December 18, 2009, the trial court granted defendant's motion to strike his strike.
At sentencing on March 5, 2010, defendant asked for "half-time" credits under section 4019 based on the court having stricken his strike. The trial court noted, "The issue of credits is a bit of a moving target, and you're aware that we now have some guidance that appears to constrain retroactive application." The probation officer asserted that defendant was not entitled to extra conduct credits because he still had a prior serious felony conviction, notwithstanding the court's striking it for other purposes. Defendant attempted to distinguish Varnell on that point. The court's award of conduct credits using the preamendment formula under section 4019 implicitly denied defendant's request for extra credits.
By the time of sentencing on March 5, 2010, the only published case had determined on March 1, 2010 that the amendment of section 4019 was not retroactive. (People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808.) There was no conflict in authority until the March 16, 2010 publication of People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.
3. AMENDMENT OF SECTION 4019
Section 4019 is one of several "separate and independent credit schemes for presentence and postsentence custody" related to felony sentencing. (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) Before the 2009 amendment, section 4019 allowed prisoners to earn a total of two days of conduct credit for every four days of actual presentence incarceration. (E.g., People v. Dieck (2009) 46 Cal.4th 934, 939.) The amendment allowed eligible prisoners to earn conduct credits at a greater rate, such that two days of conduct credits could be earned for every two days of actual presentence custody.
Section 4019 is part of a statutory scheme authorizing credits for time spent in presentence custody. Under another part of this scheme, "[e]veryone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. (§§ 2900, subd. (c), 2900.1, 2900.5, subds. (a), (b).)" (Buckhalter, supra, 26 Cal.4th at p. 30.) Section 2900.5 gives credit for the actual days spent in presentence custody, in addition to any section 4019 credits.
Yet other statutes provide for prisoners earning good conduct credit after being sentenced to prison. (E.g., § 2933.) It is the responsibility of the Department of Corrections and Rehabilitation and not the courts to calculate any credits due for such postsentence conduct. (Buckhalter, supra, at p. 31; In re Martinez (2003) 30 Cal.4th 29, 37.)
The amending legislation was signed by the Governor on October 10, 2009; because it was enacted during a special session of the Legislature, it took effect on January 25, 2010, 91 days after the special session adjourned. (Cal. Const., art. IV, § 8, subd. (c)(1).) For convenience, we refer to this as "the 2009 amendment" or simply "the amendment." Section 4019 was later amended prospectively, effective September 28, 2010, to reinstate the previous credit scheme in effect before the 2009 amendment. (Stats. 2010, ch. 426, § 2, p. 2088.)
In pertinent parts, the amendment provided: "(b)(1) Except as provided in Section 2933.1 and paragraph (2), subject to the provisions of subdivision (d), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] . . . [¶]
"(c)(1) Except as provided in Section 2933.1 and paragraph (2), for each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] . . . [¶]
"(f) 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)." (Former § 4019, subds. (b)(1), (c)(1), (f).)
The amendment disqualified certain prisoners from earning extra credit, namely any prisoner who "is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5." (Former § 4019, subds. (b)(2), (c)(2).)
"The presentence credit scheme, section 4019, focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed on felony charges." (Buckhalter, supra, 26 Cal.4th at p. 36; People v. Brown (2004) 33 Cal.4th 382, 405; People v. Dieck, supra, 46 Cal.4th at p. 939.)
4. APPLICABILITY OF SECTION 1385 TO SECTION 4019
The 2009 amendment disqualifies defendant from earning extra conduct credit due to his prior strike conviction. We need not reach the issue of whether the amendment applies retroactively if we conclude that the trial court has no ability under section 1385 to eliminate that consequence to defendant, so we consider the scope of section 1385 authority first.
A number of courts have concluded that the amendment is retroactive. (People v. Brown, supra, 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [3d Dist.]; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813 [2d Dist., Div. 1]; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808 [1st Dist., Div. 2]; People v. Norton (2010) 184 Cal.App.4th 408, review granted Aug. 11, 2010, S183260 [1st Dist., Div. 3]; People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552 [1st Dist., Div. 5]; People v. Keating (2010) 185 Cal.App.4th 364, review granted Sept. 22, 2010, S184354 [2d Dist., Div. 7]; People v. Bacon (2010) 186 Cal.App.4th 333, review granted Oct. 13, 2010, S184782 [2d Dist., Div. 8]; People v. Jones (2010) 188 Cal.App.4th 165, review granted Dec. 15, 2010, S187135 [3d Dist.]; In re Kemp (2011) 192 Cal.App.4th 252, review granted Apr. 13, 2011, S191112 [3d Dist.].)
Other courts, including this one, have concluded that the amendment is not retroactive. (People v. Rodriguez, supra, 183 Cal.App.4th 1, review granted June 9, 2010, S181808 [5th Dist.]; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314 [4th Dist., Div. 2]; People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724 [6th Dist.]; People v. Eusebio (2010) 185 Cal.App.4th 990, review granted Sept. 22, 2010, S184957 [2d Dist., Div. 4].)
A majority of the Fourth District, Division One, concluded that defendants sentenced after the effective date of the amendment are entitled to an award of double credits, even for custody served prior to the effective date of the amendment. (People v. Zarate (2011) 192 Cal.App.4th 939, review granted May 18, 2011, S191676). The majority did not perceive this as a retroactive application of the amendment, while the dissent did. The California Supreme Court has granted review in all of these cases.
As quoted above, the amendment provided in part that those with "a prior conviction for a serious felony, as defined in Section 1192.7" (former § 4019, subds. (b)(2), (c)(2)) are ineligible to receive one-for-one conduct credits. The Attorney General argues that due to a prior serious felony conviction, defendant is ineligible to earn the extra credit otherwise allowed by the amendment. Defendant argues that the trial court is authorized to strike the serious felony conviction for purposes of section 4019, just as it did for purposes of Three Strikes sentencing, and asks that we remand to afford the trial court an opportunity to do so.
Defendant's opening brief relied primarily on a Third District decision that concluded that section 1385 authorizes trial courts to strike prior convictions for section 4019 purposes, but the California Supreme Court has granted review in that case (People v. Jones, supra, 188 Cal.App.4th 165, review granted Dec. 15, 2010, S187135) without ordering it published, so we are precluded from citing or relying on it. (Cal. Rules of Court, rule 8.1115.) We have requested and received supplemental briefing on more recent cases addressing section 4019, and the California Supreme Court has granted review in those cases as well.
Section 1385, subdivision (a) provides in part that "[t]he judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." This trial court power has been recognized by statute since 1850. (People v. Williams (1981) 30 Cal.3d 470, 478.)
In full section 1385 provides: "(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.
"(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.
"(c)(1) If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).
"(2) This subdivision does not authorize the court to strike the additional punishment for any enhancement that cannot be stricken or dismissed pursuant to subdivision (a)."
As we see it, whether section 1385 authorizes trial courts to strike prior felony convictions and other disqualifying factors for purposes of section 4019 credits depends on whether the issue is closer to Romero, supra, 13 Cal.4th 497 or Varnell, supra, 30 Cal.4th 1132. In Romero, the California Supreme Court determined that the Three Strikes law did not deprive trial courts of discretion to strike prior felony convictions in sentencing under that law. By contrast, the California Supreme Court determined in Varnell that trial courts have no authority to strike prior convictions and prison terms in determining eligibility for probation and drug treatment under Proposition 36 (§ 1210.1). We examine both decisions more closely for guidance.
A. THE ROMERO DECISIONA.
In Romero, the California Supreme Court addressed "whether a court may, on its own motion, strike prior felony conviction allegations in cases arising under the law known as 'Three Strikes and You're Out.' (§ 667, subds. (b)-(i), added by Stats. 1994, ch. 12, § 1, eff. Mar. 7, 1994; see also § 1170.12, added by initiative, Gen. Elec. (Nov. 8, 1994) [Proposition 184].)" (Romero, supra, 13 Cal.4th at p. 504.)
The Three Strikes law is "an alternative sentencing scheme" (People v. Anderson (2009) 47 Cal.4th 92, 102) that provides for various consequences if a person convicted of a felony has one or more prior convictions for felonies classified as either violent in section 667.5, subdivision (c), or serious in section 1192.7, subdivision (c). With one strike, the prescribed term of imprisonment for the new conviction is doubled. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) With two or more prior strikes, the term for the new conviction is a minimum of 25 years to life. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2); Romero, supra, 13 Cal.4th at pp. 505-506.)
There are other consequences once a prior strike is pleaded and proved, including that a prisoner cannot earn postsentence conduct credits exceeding one-fifth of the total term of imprisonment imposed. (§§ 667, subd. (c)(5), 1170.12, subd. (a)(5); Buckhalter, supra, 26 Cal.4th at p. 32.)
Romero, supra, 13 Cal.4th stated on page 518, "we will not interpret a statute as eliminating courts' power under section 1385 'absent a clear legislative direction to the contrary.' (People v. Thomas [(1992)] 4 Cal.4th [206] at p. 210; see also People v. Rodriguez (1986) 42 Cal.3d 1005, 1019 [section 1385 is inapplicable in the face of a 'more specific proscription on the court's power']; People v. Fritz (1985) 40 Cal.3d 227, 230 [requiring 'clear language eliminating a trial court's section 1385 authority whenever such elimination is intended']; People v. Williams (1981) 30 Cal.3d 470, 482 ['Section 1385 permits dismissals in the interest of justice in any situation where the Legislature has not clearly evidenced a contrary intent.'].)" Thus, the court focused on answering this question: "Does the Three Strikes law contain a 'clear legislative direction' that courts may not strike sentencing allegations in furtherance of justice under section 1385 without the prosecutor's approval?" (Ibid.)
Far from including an express limitation on section 1385 authority, the Three Strikes law acknowledges that statutory authority. While the Three Strikes law requires prosecutors to plead and prove every known prior felony conviction (§§ 667, subds. (f)(1), (g), 1170.12, subds. (d)(1), (e)), it also expressly authorizes them to seek dismissal of such a conviction "in the furtherance of justice pursuant to Section 1385." (§§ 667, subd. (f)(2), 1170.12, subd. (d)(2); Romero, supra, 13 Cal.4th at p. 514.) Because the court was considering both a statute and an initiative, it examined not only the intent of the Legislature but of the voters "to determine whether the Legislature (and the electorate) did, or did not, intend to give prosecuting attorneys the power to veto judicial decisions to dismiss prior felony conviction allegations in furtherance of justice under section 1385." (Romero, supra, at pp. 517-518.) "Plainly the Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders." (Id. at p. 528.) This recognition "begs the question of how judicial discretion was to be restricted. The answer to that question can be found only by examining the language of the act." (Ibid.)
Noting "a long history of dispute among the various branches of state government over the application of section 1385 to sentencing allegations" (Romero, supra, 13 Cal.4th at pp. 521-522), the court found it unlikely that another statute would expressly authorize section 1385 motions absent the intent "to confirm that courts would retain their power to act pursuant to the section." (Romero, supra, at p. 522.) Keeping in mind that it might violate the separation of powers to interpret the Three Strikes law as making a prosecutor's motion a precondition to the exercise of judicial authority under section 1385 (Romero, supra, at pp. 508-517), the court was unable to find "a 'clear legislative direction' eliminating the court's power to act on its own motion pursuant to section 1385." (Id. at p. 528.)
B. THE VARNELL DECISION
Varnell, supra, 30 Cal.4th 1132, like Romero, involved the application of section 1385 to "an alternative sentencing scheme." (Varnell, supra, at p. 1136.) Proposition 36 (§ 1210.1) requires a grant of probation including drug treatment for eligible persons convicted of nonviolent drug possession offenses. (Varnell, supra, at p. 1136.) "The alternate sentencing scheme prescribed by Proposition 36 excludes five classes of defendants" (People v. Orabuena (2004) 116 Cal.App.4th 84, 90), including those with prior strike convictions who have not remained free from either custody or a specified conviction within five years of the new offense. (§ 1210.1, subd. (b)(1).)
Section 1210.1, subdivision (b) provides in relevant part: "Subdivision (a) shall not apply to any of the following:
"(1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person.
"(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony."
At issue in Varnell was "whether a trial court may rely on section 1385 to do something other than dismiss the charges or allegations in a criminal action--i.e., whether a trial court may invoke section 1385 to disregard 'sentencing factors.' " (Varnell, supra, 30 Cal.4th at pp. 1134-1135.) "A 'sentencing factor' is 'a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense.' (Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19.)" (Id. at p. 1135, fn. 3.) More specifically, the question in Varnell was whether section 1385 authorizes trial courts to grant probation under section 1210.1, subdivision (a), despite the existence of disqualifying factors in subdivision (b)(1).
The court began its analysis by reviewing limitations on section 1385 authority. " 'The only action that may be dismissed under Penal Code section 1385, subdivision (a), is a criminal action or a part thereof.' (People v. Hernandez [(2000)] 22 Cal.4th [512] at p. 524, italics added.) We have consistently interpreted 'action' to mean the 'individual charges and allegations in a criminal action' (id. at pp. 521-522, 523; People v. Burke [(1956)] 47 Cal.2d [45] at p. 50) and have never extended it to include mere sentencing factors. Thus, our courts have refused to permit trial courts to invoke section 1385 to dismiss sanity proceedings or a plea of insanity (Hernandez, supra, 22 Cal.4th at pp. 522-524); to reduce a verdict of first degree murder to second degree murder (People v. Superior Court (Prudencio)(1927) 202 Cal. 165, 173-174, disapproved on other grounds in People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 501; cf. § 1181, pars. 6, 7); to reduce the offense of conviction to an uncharged lesser related offense (People v. Smith (1975) 53 Cal.App.3d 655, 657-658); or to enter a judgment of acquittal (People v. Superior Court (Jonsson)(1966) 240 Cal.App.2d 90, 92-93, disapproved on other grounds in People v. Superior Court (Howard), supra, 69 Cal.2d at p. 501). A ruling that section 1385 could be used to disregard sentencing factors, which similarly are not included as offenses or allegations in an accusatory pleading, would be unprecedented." (Varnell, supra, 30 Cal.4th at p. 1137.)
Burke was disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647, which in turn was overruled on other grounds in People v. Tenorio (1970) 3 Cal.3d 89, 91.
Burke upheld a trial court's dismissal of an admitted prior conviction which would have had the effect of requiring a prison sentence for a conviction of possessing marijuana. (People v. Burke, supra, 47 Cal.2d at pp. 49-54.) After Burke, the Legislature enacted a statute that purported to condition judicial authority to so act on a request by the prosecutor. In People v. Sidener, supra, 58 Cal.2d 645, a 4 to 3 majority concluded that the new statute did not violate the separation of powers. (Id. at p. 650.) Sidener was unanimously overruled by People v. Tenorio, supra, 3 Cal.3d at page 91, which sided with the dissent in Sidener.
The court continued: "It also would be inconsistent with our description of the effect of a section 1385 dismissal. As we have repeatedly emphasized, dismissal of a prior conviction allegation under section 1385 'is not the equivalent of a determination that defendant did not in fact suffer the conviction.' (People v. Burke, supra, 47 Cal.2d at p. 51; [citation].) 'When a court strikes prior felony conviction allegations in this way, it " 'does not wipe out such prior convictions or prevent them from being considered in connection with later convictions.' " ' (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 508, quoting People v. Burke, supra, 47 Cal.2d at p. 51.) Thus, while a dismissal under section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use. [Fn. omitted.] Hence, the trial court's dismissal of the 'strike' allegation in this case did not wipe out the fact of the prior conviction and the resulting prison term that made petitioner ineligible under subdivision (b)(1) of section 1210.1." (Varnell, supra, 30 Cal.4th at p. 1138.)
The court reasoned that the eligibility provisions of section 1210.1 are comparable to the deferred entry of judgment provisions (§ 1000 et seq.) that allow a defendant charged with specified drug offenses to participate in a drug education and treatment program in lieu of criminal prosecution. (Varnell, supra, 30 Cal.4th at pp. 1138-1139.)
Varnell held unanimously "that a trial court's power to dismiss an 'action' under section 1385 extends only to charges or allegations and not to uncharged sentencing factors, such as those that are relevant to the decision to grant or deny probation (e.g., Cal. Rules of Court, rule 4.414(b)(1)) or to select among the aggravated, middle, or mitigated terms (e.g., id., rule 4.421(b)(1)). Section 1210.1, like the deferred-entry-of-judgment statutes, does not require that the basis for a defendant's ineligibility be alleged in the accusatory pleading. In the absence of a charge or allegation, there is nothing to order dismissed under section 1385." (Varnell, supra, 30 Cal.4th at p. 1139.)
In Varnell, the court also rejected a contention arising under People v. Lo Cicero (1969) 71 Cal.2d 1186 (Lo Cicero) that section 1210.1 contains an implied pleading and proof requirement. (Varnell, supra, 30 Cal.4th at pp. 1139-1143.) According to Varnell, Lo Cicero had recognized an implicit pleading and proof requirement for a prior conviction because " ' "increased penalties" ' " flowed from the prior conviction. (Id. at p. 1140.) The Lo Cicero court concluded that a statutory prohibition of probation for certain narcotics offenses if the defendant had a prior narcotics conviction was " 'equivalent to an increase in penalty,' " thus requiring pleading and proof of the prior conviction. (Ibid., quoting Lo Cicero, supra, at p. 1193.) Varnell distinguished Lo Cicero on the basis that "petitioner's prior conviction and the resulting prison term did not eliminate his opportunity to be granted probation. Although petitioner was ineligible for probation under the terms of section 1210.1, he was eligible for probation under section 1203, subdivision (e). [Fn. omitted.] Thus, unlike Lo Cicero, this is not a case where the prior conviction absolutely denied a defendant the opportunity for probation." (Varnell, supra, at p. 1140.)
The court concluded "that an accusatory pleading need not allege petitioner's ineligibility for mandatory probation and treatment under section 1210.1 nor the facts underlying that ineligibility. [¶] In the absence of a charge or allegation concerning petitioner's ineligibility under subdivision (b) of section 1210.1, there was nothing for a court, acting under section 1385, to dismiss." (Varnell, supra, 30 Cal.4th at p. 1143.)
We recognize that the disqualifying factors in Varnell actually had been alleged. In Varnell, the prosecutor had "charged petitioner with possession of methamphetamine and alleged a prior 'strike,' arising from his 1995 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)), as well as a prior prison term enhancement (§ 667.5, subd. (b)), arising from the same conviction." (Varnell, supra, 30 Cal.4th at p. 1135.) "[T]he court agreed to dismiss the alleged strike but found that the fact of the prior conviction and resulting prison term rendered him 'ineligible in this court's opinion for Prop[osition] 36 treatment.' " (Ibid.)
We understand the court's point to be that the disqualifying factors were not alleged due to any requirement in section 1210.1. Presumably these facts, the prior conviction and the prior prison term, were charged as required by other statutes. As noted above, the Three Strikes law enacted in 1994 requires prosecutors to plead and prove all prior felony convictions. Since 1978, section 1170.1 has required the pleading and proof of enhancements, including section 667.5 (one-year enhancement for each prior prison term), specified in former subdivision (e). (Stats. 1977, ch. 165, § 17, p. 650.) This subdivision was broadened in 1997 to provide that "[a]ll enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (Stats. 1997, ch. 750, § 3, p. 5067.) Additionally, numerous statutes require the pleading and proof of facts rendering a defendant ineligible for probation. (E.g., §§ 1203.06, subd. (b)(1), 1203.07, subd. (b), 1203.073, subd. (d), 1203.075, subd. (b), 1203.08, subd. (b)(1), 1203.085, subd. (c).)
After reaching this conclusion, the court considered the intent of the electorate, noting ballot arguments had assured voters that defendants with prior strikes were not eligible unless they had served their time and committed no felonies for five years. (Varnell, supra, 30 Cal.4th at pp. 1143-1144.)
C. APPLYING ROMERO AND VARNELL
The issue in this case, as in Romero and Varnell, is whether trial courts are authorized by section 1385 to strike a prior strike conviction for particular purposes. A strike has different consequences in each situation. Under the Three Strikes law at issue in Romero, a prior strike has multiple consequences, including at least doubling a defendant's new prison sentence. Under section 1210.1 at issue in Varnell, the consequence of a strike plus recent prison time disqualifies a defendant from Proposition 36 probation and drug treatment. Under section 4019, a prior strike disqualifies a defendant from earning extra presentence conduct credits.
The Three Strikes law, unlike section 1210.1 and unlike section 4019, contains an express requirement for pleading and proving prior strikes. The Three Strikes law, unlike section 1210.1 and unlike section 4019, contains an explicit reference to section 1385. The court in Romero gave thorough consideration to what the intent of the Legislature and of the electorate was in referring to section 1385 in the Three Strikes law. In Varnell, the court focused on the inherent limitations of section 1385 authority. To the extent these cases can be harmonized, the scope of section 1385 authority in this case appears to depend on whether section 4019 contains an implicit requirement that disqualifying factors be pleaded and proved. If disqualifying certain prisoners from earning greater conduct credits is regarded as increasing their punishment within the meaning of Lo Cicero, then such an implicit requirement may be found. In our view, however, classifying prisoners with a specified status as ineligible to earn extra conduct credits cannot be regarded as increasing punishment.
People v. Koontz (2011) 193 Cal.App.4th 151, review granted May 18, 2011, S192116 [2d Dist., Div. 6] did not decide whether a prior conviction had to be pleaded and proved under section 4019, simply observing that a prior conviction had been pleaded and proved. The court did conclude that the 2009 amendment mitigated punishment and that trial courts retained discretion under section 1385 to strike prior strikes in calculating conduct credits.
In People v. Lara (2011) 193 Cal.App.4th 1393, review granted May 18, 2011, S192784, this court concluded that the plea agreement in issue vested the trial court with discretion to strike a prior strike for purposes of calculating credits under section 4019. Lara reasoned that the impact of a prior strike under the 2009 amendment is to increase punishment, so the strike had to be pleaded and proved.
In People v. James (2011) 196 Cal.App.4th 1102, the Fourth District, Division One, addressed facts similar to this case and concluded that awarding extra conduct credits under section 4019 does not reduce punishment and that a prior strike need not be pleaded and proved under that statute. The California Supreme Court has not yet had an opportunity to consider reviewing James.
The California Supreme Court addressed a similar issue in In re Kapperman (1974) 11 Cal.3d 542 (Kapperman), in deciding whether the Legislature violated equal protection by providing for the prospective application of section 2900.5 based on the time of a prisoner's delivery to the Director of Corrections. (Kapperman, supra, at p. 545.) Although the court found the prospective application unconstitutional as "a legislative classification which is not reasonably related to a legitimate public purpose" (ibid.), the court pointed out that "this case is not governed by cases (e.g., In re Estrada [(1965)] 63 Cal.2d 740, 744) involving the application to previously convicted offenders of statutes lessening the punishment for a particular offense." (Id. at p. 546.)
Section 2900.5 provides for one day of credit against a prison sentence for each day spent in local presentence custody, regardless of behavior while in local custody.
In re Estrada, supra, 63 Cal.2d 740 developed a rule for determining whether certain statutes have retroactive effect. "[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) The reasoning behind this rule is: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.)
As we understand this passage in Kapperman, awarding presentence custody credit under section 2900.5 is not to be equated with lessening punishment. In fact, section 2900.5 gives credit for time in presentence custody as part of a defendant's punishment. The same period of time is ultimately spent in custody. The defendant who is incarcerated before sentencing simply starts serving the period earlier.
"The legislative purpose appears to have been to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts." (In re Rojas (1979) 23 Cal.3d 152, 156.)
We recognize that Kapperman, supra, 11 Cal.3d 542 distinguished actual custody credit from credit for good behavior. (Id. at p. 548.) But we believe the point is the same.
We do not regard section 4019 as a statute intended either to impose or reduce punishment. The statute neither defines a crime nor specifies punishment for any crime. The statute has a different purpose, namely, to motivate good behavior by prisoners who are in local custody, thereby facilitating management of inmate populations. It rewards good behavior by allowing prisoners to complete their custodial time at an accelerated rate, but it does not add punishment for those who misbehave. Section 4019 would not require a defendant to serve more than his or her actual sentence for failing to work or comply with jail regulations. The amendment offers a lesser reward for good behavior to prisoners with a prior strike than to those without a prior strike, but we do not equate offering a lesser reward with increasing punishment or penalty.
Since we conclude that offering a smaller reward to certain types of prisoners is not an increase in penalty within the meaning of Lo Cicero, it follows that section 4019 does not implicitly require prosecutors to plead and prove the disqualifying factors specified in former subdivisions (b)(2) and (c)(2). It further follows that, while section 1385 allows the trial court to strike defendant's prior strike in order to relieve him of a doubled prison term under the Three Strikes statute, it does not authorize the trial court to strike the strike for the purpose of calculating presentence conduct credits. Defendant has already been awarded 182 days of conduct credits. He is ineligible by virtue of his prior strike for additional conduct credits under the 2009 amendment of section 4019. Even if we concluded that the benefits of this amendment were fully retroactive, they would not be available to defendant due to his prior strike, so we do not reach the question of retroactivity here.
5. DISPOSITION
The judgment is affirmed.
GROVER, J. WE CONCUR: PREMO, ACTING P.J. BAMATTRE-MANOUKIAN, J.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.