APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. (Super. Ct. No. SCD225061)
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
Kent James appeals from a judgment entered after he pled guilty to one count of possession of a controlled substance and admitted that he had a prison prior. James contends that the superior court erred in denying him enhanced presentence custody credits under Penal Code*fn1 section 4019, because the prosecution did not plead and prove that he has suffered a prior serious felony conviction. James maintains that in order for a prior conviction to be used to disqualify a defendant from receiving the enhanced credits, the prior must be pled and proved. We conclude that no pleading and proof requirement applies to the enhanced custody credit provisions of section 4019, and thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After a traffic stop during which police found two packaged pieces of cocaine base and two glass pipes in James's possession, James was arrested and charged with one count each of possession of a controlled substance and possession of narcotics paraphernalia. The charging information also alleged that James had suffered two prison priors and one strike prior.
James subsequently agreed to plead guilty to the drug possession charge and to admit one of the prison prior allegations in exchange for dismissal of the remaining charge and allegations, including the strike prior allegation. James stipulated to a sentence of four years, suspended for a period of three years, on the conditions that he serve 365 days in jail and thereafter be placed on formal probation and enter a long-term drug treatment program. The trial court awarded James 147 days of presentence custody credits, consisting of 99 days actually served and 48 days of conduct credits under section 4019. The court determined that James's prior strike conviction rendered him ineligible for enhanced credits, despite the fact that the court dismissed the strike prior for purposes of sentencing in this case. James filed a notice of appeal and obtained a certificate of probable cause to challenge the trial court's denial of additional custody credits.
Under section 2900.5, a person who is sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody prior to sentencing. (§ 2900.5, subd. (a).) Section 4019 provides that a criminal defendant may earn additional presentence credit against his sentence for being willing to perform assigned labor (§ 4019, subd. (b)), and for complying with applicable rules and regulations (§ 4019, subd. (c)). (See People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 [recognizing that these presentence credits are collectively referred to as conduct credits].)
Before January 25, 2010, section 4019 provided that "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. (Former § 4019, subds. (b), (c); Stats. 1982, ch. 1234, § 7, p. 4553.) The statute also provided that "if 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." (Former § 4019, subd. (f); Stats. 1982, ch. 1234, § 7, p. 4554.)
Effective January 25, 2010, however, section 4019 was amended to provide for the accrual of presentence credits at twice the previous rate. (§ 4019, subd. (f) ["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 . . . ."]; see also Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Defendants who are required to register as sex offenders, defendants committed for a serious felony, and defendants who have a prior conviction for a serious or violent felony are specifically exempted from eligibility for the enhanced credits. (§ 4019, subds. (b)(2) & (c)(2).)*fn2
James concedes that he has a prior serious felony conviction, but contends that he is nonetheless entitled to enhanced credits under section 4019, subdivision (f). He reasons that the statutory provisions that preclude certain criminal defendants from receiving enhanced credits implicitly require that the prior conviction be pled and proven beyond a reasonable doubt in the current proceeding before the defendant can be deemed ineligible for the credits. James maintains that because his prior strike was neither proven nor admitted in the trial court, he is entitled to such credits.
Section 1385 authorizes the trial court to "order an action to be dismissed" in the furtherance of justice. (§ 1385, subd. (a).) The court's authority includes the power to strike or dismiss a sentencing allegation, including an allegation that the defendant has suffered a prior serious or violent felony conviction, where the trial court concludes that the defendant should not be subjected to a statutorily increased penalty that would otherwise apply. (People v. Garcia (1999) 20 Cal.4th 490, 496; People v. Snow (2003) 105 Cal.App.4th 271, 283.)
However, the fact that a sentencing allegation is stricken under section 1385 " 'is not the equivalent of a determination that [the] defendant did not in fact suffer the conviction.' " (People v. Garcia, supra, 20 Cal.4th at pp. 496, 499, quoting People v. Burke (1956) 47 Cal.2d 45, 50-51.) Even after a court strikes or dismisses a prior conviction allegation, "the [prior] conviction remains part of the defendant's personal history, and a court may consider it when sentencing the defendant for other convictions, ...