Trial Court: Sonoma County Superior Court Trial Judge: Honorable Arthur A. Wick (Sonoma County Super. Ct. No. SCR585540)
The opinion of the court was delivered by: Banke, J.
CERTIFIED FOR PUBLICATION
Defendant Brian Voravongsa appeals from a judgment of conviction following a no contest plea to possessing a shank while in custody in violation of Penal Code section 4502, subdivision (a),*fn1 and the admission of one prior "strike" conviction. The sole issue he raises on appeal is whether he is entitled to additional conduct credits under the amendments to section 4019 that became effective January 25, 2010. These amendments increased conduct credits for some defendants, but not for offenders who were required to register as a sex offender or had suffered a prior serious felony conviction. Defendant does not make a retroactivity claim, since he was sentenced after the amendments became effective. Rather, he contends the trial court should have considered his Romero motion,*fn2 which the court denied, not only for the purpose of his eligibility for probation, but also his eligibility for additional conduct credits. He asks for a limited remand so the court can consider his motion for the latter purpose.
The issue defendant raises on appeal then, is whether a trial court can exercise its discretion under section 1385 to dismiss a prior conviction in order to award additional conduct credits otherwise unavailable under the January 25, 2010, amendments to section 4019. In In re Varnell (2003) 30 Cal.4th 1132 [135 Cal.Rptr.2d 619, 70 P.3d 1037] (Varnell), the Supreme Court held a trial court's power to dismiss under section 1385 extends only to matters that must be pled and proven, and not to "sentencing factors" that need not be pled and, even if they are, survive a dismissal under section 1385. We must therefore decide whether sex offender registration or a prior serious felony conviction are matters that must be pled and proven under the January 25, 2010, amendments to section 4019 and are subject to a motion to dismiss under section 1385, or whether they are sentencing factors beyond the purview of such a motion.
We are not the first court to consider these questions. In fact, this case concerning the reach of section 1385, deals with the third of the trilogy of issues concerning the January 25, 2010, amendments to section 4019 the courts of appeal have addressed over the past year--the first being retroactivity and the second, whether sex offender registration or a prior serious felony conviction must be pled and proven but not considering the reach of section 1385. The courts of appeal have reached differing results, and the Supreme Court has granted review, on all three issues.*fn3
The courts are nearly evenly split on whether sex offender registration and a prior serious felony conviction are matters that must be pled and proven under the January 25, 2010, amendments to section 4019 and are subject to a motion to dismiss under section 1385.*fn4 Several of the courts that have answered these questions in the affirmative have done so as though the answers inevitably follow from a conclusion the amendments are retroactive. (E.g., People v. Koontz, supra, 122 Cal.Rptr.3d at p. 706 [commencing section 1385 analysis with citations to In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] (Estrada), and other retroactivity cases]; People v. Jones, supra, 115 Cal.Rptr.3d at pp. 270-272 ["[b]ecause Senate Bill No. 18 reduces punishment for those who are eligible [thus making it retroactive under Estrada], having a prior serious conviction is a condition that increases punishment," requiring that it be pled and proven under People v. Lo Cicero (1969) 71 Cal.2d 1186 [80 Cal.Rptr. 913, 459 P.2d 241] (Lo Cicero), and thus allowing for a motion to dismiss under section 1385], disapproved on another point in Curl v. Superior Court (1990) 51 Cal.3d 1292, 1301-1302, fn. 6 [276 Cal.Rptr. 49, 801 P.2d 292].)
While this court has agreed in other cases that the January 25, 2010, amendments to section 4019 are retroactive, we agree with James, supra, 2011 WL 2505557, that retroactivity is an entirely different issue, subject to a different analysis. We also agree with James that there is no pleading and proof requirement under the amendments to section 4019 and that section 1385 does not reach the credit dictates of those provisions. We therefore affirm the judgment.
During the afternoon of July 7, 2010, defendant was transported from one unit to another at the Sonoma County Main Adult Detention Facility. During a search of his personal property, jail personnel discovered a jail issued toothbrush with a forged and sharpened end. That evening, a deputy with the Sonoma County Sheriff's Office was dispatched to the facility to investigate. The toothbrush was classified as a shank that could injure inmates or staff. On July 9, 2010, the Sonoma County District Attorney filed a complaint charging defendant with one count of possessing a shank while in a penal institution in violation of section 4502, subdivision (a), and also alleging he had suffered a prior strike conviction and prior prison conviction.
On August 25, 2010, pursuant to a negotiated disposition, defendant pled no contest to possessing a shank while in custody and admitted the prior strike conviction. The parties also agreed if the trial court granted defendant's Romero motion, struck the prior and placed him on probation, any subsequent prison term would not exceed eight years. If the trial court denied his motion, he would be immediately committed to prison for a term not exceeding six years. No agreement was made as to, nor did defendant request, additional conduct credits under the January 25, 2010, amendments to section 4019. On September 17, 2010, the trial court denied defendant's Romero motion, sentenced him to prison and gave him 109 days of custody credit. He filed a timely notice of appeal on October 19, 2010.*fn5
Section 4019 permits a defendant to earn additional custody credits prior to being sentenced by performing assigned labor (§ 4019, subd. (b)) or by good behavior during confinement. (§ 4019, subd. (c).) Such credits are collectively referred to as "conduct credits." (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 [95 Cal.Rptr.3d 408, 209 P.3d 623].) Section 4019's scheme for presentencing credits " ' "focuses primarily on encouraging minimal cooperation and good behavior by persons temporarily detained in local custody before they are convicted, sentenced, and committed. . . ." ' [Citations.]" (Dieck, at p. 939.)
Senate Bill No. 18, enacted in October 2009, amended section 4019 (eff. Jan. 25, 2010) to enhance the rate at which certain offenders could accrue conduct credits. (Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50, p. 4427.) The amendments allowed defendants to earn conduct credits at an accelerated rate of four days' credit for every two days actually served. (Former § 4019, subd. (f).) However, the amendments specified sex offender registrants and defendants with a prior, serious felony conviction were ineligible to earn credits at the accelerated rate. (Former § 4019, subds. (b)(2), (c)(2).) Such defendants continued to earn credits at the pre-January 25, 2010, rate of "six days . . . for every four days spent in actual custody." ...