Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2009021146, Bruce A. Young, Judge.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Charles S. Lee, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Jonathan W. Weaver appeals the judgment entered after he pleaded guilty to possessing heroin for sale (Health & Saf. Code, § 11351) and admitted suffering a prior strike conviction (Pen. Code, §§ 667, subds. (c)(1) & (e)(1), 1170.12, subds. (a)(1) & (c)(1)). In exchange for appellant's plea, the trial court dismissed the strike prior pursuant to section 1385 and sentenced him to three years in state prison. Appellant was awarded 319 days of presentence custody credit, consisting of 213 days actual custody credit and 106 days conduct credit. Appellant contends the court erred in concluding that his prior strike conviction rendered him ineligible for "one-for-one" presentence conduct credits under the recently amended version of section 4019 that went into effect after he was sentenced, notwithstanding the fact that the prior conviction had been stricken pursuant to section 1385. He further contends that section 4019 violates equal protection to the extent it limits presentence conduct credit for prisoners with prior strike convictions that are stricken. Although we reject the equal protection claim, we conclude that the court erroneously believed it lacked the discretion to strike appellant's prior conviction for purposes of section 4019. Accordingly, we shall remand for the court to determine whether to exercise its discretion in that regard. Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
Appellant was sentenced on January 4, 2010, before the amended version of section 4019 went into effect. On June 22, 2010, he moved the trial court to grant him additional custody credits under the statute. In opposing the motion, the People did not contend that the amendments to section 4019 only apply prospectively. They do, however, raise the claim in their respondent's brief. Because the issue was not litigated below, it is forfeited. In any event, we agree with the majority of cases that conclude the amendments apply to all defendants whose judgments were not yet final when the statute went into effect on January 25, 2010. (E.g., People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, No. S181963 [holding amendments are retroactive]; contra, People v. Rodriguez (2010) 183 Cal.App.4th 1 , review granted June 9, 2010, No. S181808.)
STATEMENT OF FACTS
Because the facts of the offense are not relevant to the issue raised on appeal, we need not discuss them in detail. On June 6, 2009, appellant was approached on the street by an Oxnard police officer who recognized him from prior encounters. During a consensual search, the officer removed a plastic baggie from appellant's pocket that contained a substance the officer recognized as tar heroin.
DISCUSSION
Under the version of section 4019 that went into effect on January 25, 2010, certain defendants earn what are referred to as "one-for-one" presentence conduct credits, which is actually two days of conduct credit for every two days in custody. (Stats. 2009-2010, 3d Ex. Sess. c. 28, § 50.) Defendants with prior strike convictions receive the same credits to which they were entitled under the former version of the statute, i.e., two days of conduct credit for every four days actually served. (§ 4019, subds. (b)(2) & (c)(2).) Appellant admitted a prior strike, but the court dismissed it pursuant to section 1385 in accordance with the plea agreement.
Appellant contends that in striking his prior conviction under section 1385 for purposes of the three strikes law the court also necessarily struck the conviction for purposes of 4019. He alternatively contends that the amended version of section 4019 violates equal protection to the extent it limits presentence conduct credits for defendants with prior strike convictions that are stricken. Although we reject the equal protection claim and disagree with the contention that the court had to treat the strike prior as stricken for purposes of section 4019, we nevertheless conclude that the court had the discretion to treat it as stricken for that purpose. Accordingly, we shall remand for a hearing on the matter.
Section 1385Section 1385 authorizes trial courts in furtherance of justice to "order an action to be dismissed." (§ 1385, subd. (a).) In the exercise of this discretionary authority, the court may strike one or more prior strike convictions. (People v. Snow (2003) 105 Cal.App.4th 271, 283; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.)
We recently concluded 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." (People v. Koontz (Mar. 2, 2011) 193 Cal.App.4th 151, 153 [2011 WL 711585] (Koontz).) In reaching that conclusion, we reasoned among other things that the denial of one-for-one presentence conduct credits under the amended version of section 4019 for defendants without prior serious felony convictions amounts to an increase in punishment, as contemplated by In re Estrada (1965) 63 Cal.2d 740, 748, and People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193. Our colleagues in the Sixth District subsequently issued a decision agreeing with Koontz. (People v. Lara (Mar. 30, 2011, No. H036143) ___ Cal.Rptr.3d ___ [2011 WL 1136223] (Lara).) Appellant's prior strike conviction subjects him to increased punishment by depriving him of additional conduct credits, so the allegation that appellant suffered the prior conviction was required to be (and in fact was) pleaded and proved. (Lara, at pp. *5-7.) Accordingly, the court had discretion to dismiss the conviction not only for purposes of the three strikes law, but also to the extent it serves as a sentencing allegation under section 4019.
Because the court erroneously believed that it lacked the discretion to dismiss appellant's strike prior for purposes of section 4019, the matter must be remanded. In light of our conclusion, we need not address appellant's claim that the result is compelled under the ordinary rules of statutory construction.
Equal Protection
Appellant's equal protection claim is premised on the fact that prisoners with prior strike convictions that are stricken pursuant to section 1385 can earn one-for-one postsentence conduct credits under section 2933, while they are denied such credits under section 4019. He asserts that this disparate treatment is prohibited under People v. Sage (1980) 26 Cal.3d 498 (Sage), in which the Supreme Court concluded there was no rational basis for section 4019 to award presentence conduct credits to defendants ultimately convicted of misdemeanors, and yet deny them to defendants ultimately convicted of felonies. (Id. at pp. 507-508.)
Section 2933, subdivision (b) provides in pertinent part: "For every six months of continuous incarceration, a prisoner shall be awarded credit reductions from his or her term of confinement of six months."
There is no merit in appellant's equal protection claim. Numerous cases have recognized that the disparate application of presentence and postsentence conduct credit in the very manner at issue here does not violate equal protection because "the state's interest in rehabilitation and the difficulty in establishing prison-style work programs in county jails justify the disparate application of presentence and postsentence work credits." (People v. DeVore (1990) 218 Cal.App.3d 1316, 1320 (DeVore), citing People v. Waterman (1986) 42 Cal.3d 565, 570; see also, e.g., People v. Poole (1985) 168 Cal.App.3d 516, 524-526; People v. Ross (1985) 165 Cal.App.3d 368, 377; People v. Caruso (1984) 161 Cal.App.3d 13, 16-19.) Appellant fails to recognize that Sage has been distinguished from the instant case on that very basis. (DeVore, at p. 1320 ["The legislative justification for this differential treatment of prisoners cannot be summarily rejected here, as it was in Sage, because the factors do not apply to misdemeanants here"].) Although he cites to a footnote from another Supreme Court case as support for his position (In re Huffman (1986) 42 Cal.3d 552, 558, fn. 4), the statement is dicta and must in any event be read in light of the court's subsequent recognition that "the pre and postsentence credit systems serve disparate goals and target persons who are not similarly situated." (People v. Buckhalter (2001) 26 Cal.4th 20, 36.) Appellant's equal protection claim fails.
The issue in DeVore was virtually identical to the one raised here, i.e., the defendant claimed that "he, and other pretrial detainees, are denied equal protection of the law because defendants who post bail and do not begin serving their sentences until after conviction and sentencing are eligible for the prison one-for-one work time credit of section 2933. Those like appellant, who cannot post bail, are eligible for the less generous... reduction of section 4019." (DeVore, supra, 218 Cal.App.3d at p. 1319, fn. omitted.) The defendant in that case "candidly note[d] that this argument has been rejected by every appellate court that has considered it, " yet argued that those cases were wrongly decided in light of Sage. (Id. at p. 1319.) The court recognized, as we do here, that Sage is inapposite. (Id. at pp. 1319-1320.)
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court to conduct a hearing concerning whether to strike the prior felony strike conviction for the purpose of applying amended section 4019. If the prior conviction is stricken for that purpose, the trial court is directed to award the additional presentence custody credit and prepare an amended abstract of judgment, a copy of which is to be sent to the Department of Corrections and Rehabilitation.
We concur: GILBERT, P.J., YEGAN, J.