Santa Clara County Super. Ct. No. E1007527 Trial Court: Santa Clara County Superior Court No.: E1007527 Trial Judge: The Honorable Kenneth P. Barnum
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
The question presented here is whether a defendant's credit for presentence confinement can be reduced by virtue of a prior conviction when the allegations concerning that conviction are "struck" and "dismissed" as part of a plea bargain. We hold that where the plea bargain is silent concerning the extent to which such allegations are to be given effect, and the defendant does not contend that the bargain must be understood to categorically deny them any adverse effect, the question of their effect is vested in the discretion of the trial court, which may disregard them for purposes of presentence credit if it concludes that it would be in the interests of justice to do so. Here the court appeared to conclude that it was obligated to impose a reduction in presentence credits on the ground that defendant was not "really being punished" by the credit reduction. We reject this premise. We will therefore remand with directions to consider whether, in the trial court's discretion, defendant should be allowed credits calculated without regard to the prior conviction.
According to the probation report, defendant and a companion were involved in an altercation outside a Sunnyvale bar resulting in injuries to a third person. A complaint was filed charging defendant and his companion with assault by means of force likely to produce great bodily injury. It was alleged that defendant personally inflicted great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1203, subd. (e)(3)) and had previously been convicted of first degree burglary (Pen. Code, §§ 667, subds. (b)- (i), 1170.12, 667, subd. (a)). The probation report stated that defendant had sustained these convictions, and recounted his description of the underlying conduct.
Almost six months after his arrest in this matter, defendant entered a plea of no contest to the charged offense and admitted certain probation violations as part of a plea bargain. He was not asked to, and did not, admit the allegations concerning a prior conviction. The agreement was reflected in a "Plea Form, With Explanations and Waiver of Rights," which recited, as pertinent here, that defendant would receive a sentence of two years in prison and that the "GBI enhancement & Strike allegation will be struck." The prosecutor stated the latter provision slightly more broadly at the change-of-plea hearing: "the 12022.7 [great bodily injury enhancement] will be dismissed and the 667(a), Prop A [sic; "8"] prior, will be dismissed and the strike prior."
At sentencing the court alluded to an unreported "discussion about the credits," and asked defense counsel if she wished to "put something on the record." She replied, "My understanding is that you would not be giving him 50 percent credits pursuant to [former Penal Code section] 4019 [(§ 4019)], and we would object to that on the basis that my understanding is he would not be receiving 50 percent credits because of the strike prior, which was pled but never proven. It was dismissed and not pled and then struck." The court asked, "How was it dismissed? Under what?" Defense counsel replied, "Motion of the district attorney," and the prosecutor added, "Plea bargain."*fn1
The court and counsel then discussed the soundness and applicability of People v. Jones (2010) 188 Cal. App. 4th 165, review granted December 15, 2010, S187135, which had been decided some three weeks earlier. The Court of Appeal there held that when the trial court granted a motion to dismiss a strike prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, in order to effectuate a plea agreement as to maximum punishment, the court should exercise its discretion to determine whether to also disregard the strike for purposes of determining the defendant's entitlement to pre-sentence credits. Relying primarily on this decision, defense counsel urged the court below to disregard defendant's strike for purposes of presentence credits. The prosecutor countered that the case was wrongly decided, was likely to be challenged in the Supreme Court, and should not be followed. Stating that defendant "isn't really being punished," the trial court ruled in favor of the prosecution, allowing 348 days of credit, consisting of "232 actual days, plus 116 under 4019(b)(2) of the Penal Code."
This timely appeal followed.
Prior to January 25, 2010, a defendant held in county jail prior to sentencing would typically earn six days' credit (i.e., reduce his remaining time by six days) for each four days actually served--in effect, a three-to-two ratio of credits allowed for days served. (Former Pen. Code, § 4019, subds. (b), (c), (f); Stats. 1982, ch. 1234, § 7.) Effective January 25, 2010, the statute was amended to grant some prisoners four days' credit for every two days served--in effect, a two-to-one ratio. (Former Pen. Code, § 4019, subds. (b)(1), (c)(1), (f); Stats. 2009 3d Ext. Sess., ch. 28, § 50.) Some classes of prisoners, however, continued to accrue credits at the previous three-for-two rate. (Id., subds. (b)(2), (c)(2), (f).) These included any prisoner who "ha[d] a prior conviction for a serious felony, as defined in section 1192.7." (Id., subds. (b)(2), (c)(2).)*fn2
Defendant contends that to deny him the presentence credits granted to other prisoners constitutes an increase in punishment which requires that the triggering cause--his having sustained a qualifying prior conviction--be pleaded and proved. This was the reasoning adopted in Jones, supra. However, between the filing of defendant's initial brief and the filing of the state's response, the Supreme Court granted review in that case, rendering the decision not citable as authority. (See Cal. Rules of Court, rule 8.1115(a).) Nonetheless, both parties continue to frame the issues before us in terms of the rationale on which that decision rested, which may be reduced to the following propositions: (1) to deny a defendant custody credits allowed to other prisoners, by virtue of a prior conviction, is to impose increased or additional punishment on account of that prior conviction; (2) when a statute imposes a additional punishment based upon a prior conviction, the prior ...