Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA079450, Dorothy L. Shubin, Judge.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, David C. Cook and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Gregory McFarlane Lyne pleaded no contest to a charge of receiving stolen property (Pen. Code, § 496, subd. (a)) and admitted he had suffered a prior serious felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). Pursuant to the negotiated plea agreement, Lyne was sentenced to an aggregate state prison term of two years eight months (the lower term of 16 months doubled). On appeal Lyne contends the trial court abused its discretion in denying his motion to dismiss the prior strike conviction for the purpose of calculating his presentence custody credits pursuant to section 4019, former subdivisions (b)(1) and (c)(1). (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) We affirm.
Statutory references are to the Penal Code.
The Legislature amended section 4019 effective January 25, 2010 to provide for the accrual of presentence credits at twice the previous rate (one-for-one conduct credits rather than two days of conduct credit for every four days in actual custody). Urgency legislation effective September 28, 2010 restored the calculation of custody credits to the pre-January 25, 2010 formula (Stats. 2010, ch. 426, § 2) but only for “a crime committed on or after the effective date” of the revision. (§ 4019, subd. (g).)
FACTUAL AND PROCEDURAL BACKGROUND
Lyne was originally charged in a criminal complaint with one count of first degree residential burglary (§§ 459, 460, subd. (a)) and one count of receiving stolen property after it was discovered he had pawned several pieces of his mother’s jewelry without her consent. At the preliminary hearing the magistrate dismissed the burglary count, noting that Lyne had permission to be in the mother’s house, including her bedroom where the jewelry was kept, and the circumstances under which he acquired the jewelry were unclear. Lyne was held to answer on the charge of receiving stolen property.
An information filed May 20, 2010 charged Lyne with one count of receiving stolen property and further alleged he had suffered eight prior serious felony convictions within the meaning of the Three Strikes law (all for first degree burglary; all charged in the same case; all convictions on the same date, May 10, 1995). On July 30, 2010, as the result of a negotiated agreement and following a full advisement of his rights and the consequences of his plea, Lyne entered a no contest plea to the charge of receiving stolen property and admitted the truth of one of the prior strike allegations. The plea agreement, recited on the record, provided that Lyne would be sentenced to 32 months in state prison, the low term of 16 months doubled under the Three Strikes law, and the remaining special allegations would be dismissed. Sentencing was continued to September 21, 2010.
Lyne’s sentencing hearing actually took place on October 1, 2010. Several days before the hearing, based on the authority of a then-recently published decision from the Third Appellate District, People v. Jones (Sept. 3, 2010, C059440), Lyne’s counsel moved to dismiss the prior strike conviction for the purpose of awarding Lyne one-for-one presentence custody credits under former subdivisions (b)(1) and (c)(1) of section 4019. In support of Lyne’s request for additional leniency, his counsel argued Lyne’s criminal history was the result of his substance abuse problems and contended he had made significant gains in recent years as reflected by the many positive statements submitted on his behalf. Counsel also emphasized that none of Lyne’s crimes involved acts of violence. The People acknowledged under Jones and section 1385 the court could dismiss the strike for the limited purpose of calculating presentence custody credits, but argued it was not appropriate to do so under the circumstances of this case.
The Supreme Court granted review in People v. Jones on December 15, 2010 (S187135) and ordered briefing deferred pending the Court’s decision in People v. Brown (S181963), which presents the question whether the formula for the accrual of increased presentence custody credits in section 4019, former subdivisions (b)(1) and (c)(1), applies retroactively to cases not yet final on January 25, 2010, the effective date for those provisions.
The trial court agreed under Jones it had discretion to dismiss the strike for the limited purpose requested, but declined to do so. The court indicated the fact the victim was Lyne’s mother was an aggravating factor, as was the fact that she had also been the victim of his prior serious felony offense (misdescribed as “robbery, ” rather than “burglary”). Referring to the probation report the court observed that Lyne had been sentenced to a six-year prison term in 1995 for residential burglary and then in 2000 was sentenced to another six-year prison term in a narcotics case. The court noted Lyne had made some efforts toward rehabilitation, including voluntarily seeking treatment for his substance abuse problem and successfully completing parole, but concluded a sentence of 32 months without the additional presentence custody credits was reasonable.
During the pendency of his appeal, Lyne successfully moved in the trial court to correct the calculation of his presentence conduct credits. (See § 1237.1 [motion for correction of error in calculation of presentence custody credits must be presented in first instance to trial court].) On February 8, 2011 the court recalculated those credits to reflect 206 days of actual custody credit and 102 days of conduct credits (rather than 41 days as initially determined), for a total of 308 days of credit.
DISCUSSION
1. Section 4019’s Changing Provisions for the Award of Presentence Conduct Credits
Before January 25, 2010, subdivisions (b) and (c) of section 4019 provided, for “each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. (Stats. 1982, ch. 1234, § 7, p. 4553.) Former subdivision (f) of section 4019 provided, “[I]f all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” (Stats. 1982, ch. 1234, § 7, p. 4554.)
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. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) The Legislature explained the intended effect of this new accrual rate, “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).) Any defendant who “had[d] a prior conviction for a serious felony, as defined in section 1192, 7, ” however, continued to accrue conduct credits at the previous, lower rate. (§ 4019, former subds. (b)(2), (c)(2).)
As noted above, eight months after increasing the accrual rate for presentence conduct credits, the Legislature deleted section 4019’s one-for-one credits and reinstated the prior rate of two days for every four days spent in actual custody. Because Lyne’s crime was committed prior to the effective date of this most recent amendment to section 4019, he would be entitled to the more generous one-for-one rate if he were otherwise eligible to receive it. (See § 4019, subd. (g).)
2. Section 1385, In re Varnell and Discretion To Dismiss or Disregard a Prior Strike Allegation
Section 1385, subdivision (a), vests the trial court with discretion to dismiss a prior conviction, including a qualifying strike conviction, “in furtherance of justice.” (People v. Superior Court (Romero )(1996)13 Cal.4th 497, 530; People v. Williams (1998) 17 Cal.4th 148, 158.) However, the Supreme Court in In re Varnell (2003) 30 Cal.4th 1132 held a trial court could not use section 1385 to dismiss or disregard a prior serious felony conviction and resulting prison term that made a criminal defendant ineligible for mandatory probation and drug treatment under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) (§ 1210.1, subd. (b)(1)). The Court explained, “[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 [citation] or to select among the aggravated, middle, or mitigated terms [citation]. Section 1210.1 [Proposition 36]... 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.” (In re Varnell, at p. 1139.)
Distinguishing In re Varnell, several appellate decisions, including People v. Jones (Sept. 3, 2010, C059440), review granted Dec. 15, 2010, S187135, upon which the trial court relied, People v. Koontz (Mar. 2, 2011, B224697), review granted May 18, 2011, S192116 and People v. Lara (Mar. 30, 2011, H036143), review granted May 18, 2011, S192784 have held the trial court has discretion to dismiss a prior strike conviction for the purpose of making the defendant eligible for the one-for-one custody credit provided in section 4019, former subdivisions (b)(1) and (c)(1). Notwithstanding the reasoning of those cases, the Attorney General argues the analysis in In re Varnell prohibits use of section 1385 in the manner requested by Lyne. We need not address this issue, however, because we conclude, even if the trial court had the discretion to dismiss or disregard Lyne’s prior strike conviction in order to award him one-for-one conduct credits, it did not abuse its discretion in refusing to do so.
3. The Trial Court Did Not Abuse Its Discretion in Refusing To Dismiss Lyne’s Prior Strike Conviction for the Purpose of Calculating Presentence Conduct Credits
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law... or in reviewing such a ruling, the court... must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161.)
We review the trial court’s decision not to dismiss a prior strike allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶]... [¶]... ‘[I]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations.... Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)
Several factors emphasized by Lyne’s counsel in the trial court arguably supported his limited request to strike the prior serious felony conviction for the purpose of calculating presentence custody credits: The prior burglary convictions, which occurred in 1995, were not recent. Neither those prior serious felonies nor the current offense involved acts of violence. The value of the items taken was relatively small. All of Lyne’s past criminal offenses were apparently driven by his life-long drug addiction for which he has voluntarily sought treatment.
On the other hand, as the trial court found in declining to exercise its discretion to increase the award of custody credits, Lyne, who is 43 years old, had a long criminal career extending throughout his entire adult life, interrupted only by two, separate six-year state prison terms. Lyne’s probation report, upon which the court relied, reflects a 1986 conviction for trespassing; a 1992 charge of being under the influence of a controlled substance that resulted in a successful diversion; a 1994 misdemeanor conviction again for being under the influence of a controlled substance; another 1994 misdemeanor conviction for tampering with a vehicle; the 1995 (or November 1994) convictions for first degree residential burglary for which Lyne was sentenced to an aggregate state prison term of six years; and a 2000 felony conviction for possession of a controlled substance for which Lyne was sentenced to another six-year state prison term.
In light of this record of recidivism (see Cal. Rules of Court, rule 4.421(b)(2) [sentencing court properly considers defendant’s numerous prior convictions as a circumstance in aggravation]) and the relatively lenient provision of the plea agreement doubling only the lower term for receiving stolen property, Lyne’s circumstances are not so extraordinary that he must be considered to fall outside the spirit of the Three Strikes law. The trial court acted well within its broad discretion in declining to disregard or dismiss Lyne’s prior strike conviction for the purpose of determining custody credits.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., JACKSON, J.