Ct.App. 6 H036143 Super. Ct. No. E1007527 Santa Clara County
The opinion of the court was delivered by: Werdegar, J.
Effective January 25, 2010, the Legislature increased the rate at which prisoners in local custody could earn "conduct credits" against their term of confinement for work and good behavior. (Pen. Code, former § 4019, subds. (b)(1), (c)(1) & (f), as amended by Stats. 2009, 3d Ex. Sess., ch. 28, § 50 (hereafter former section 4019).)*fn1 The Legislature withheld this possibility of early release, however, from any prisoner who was required to register as a sex offender (see § 290 et seq.), was committed for a serious felony (see § 1192.7), or had a prior conviction for a serious or violent felony (see §§ 667.5, 1192.7). (Former § 4019, subds. (b)(2), (c)(2).) We granted review to decide whether a court may award credits at the increased rate to a categorically disqualified prisoner by ignoring the disqualifying facts. Defendant contends the court has that authority as an aspect of its discretionary power to dismiss a criminal action "in furtherance of justice." (§ 1385, subd. (a); see generally People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531; People v. Burke (1956) 47 Cal.2d 45, 50-51.) We conclude section 1385 does not confer such authority.
Defendant and a companion assaulted and seriously injured a man outside a Sunnyvale bar on February 11, 2010. Arrested and charged after fleeing the scene, defendant pled no contest to one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) and admitted several violations of probation. Pursuant to the terms of a plea bargain, the court exercised its power under section 1385 to strike the allegation that defendant had previously been convicted of first degree burglary (§§ 459, 460, subd. (a)), a serious offense (see § 1192.7, subd. (c)(1)(18)) that would otherwise have qualified him for sentencing under the Three Strikes law (§§ 667, subds. (b)-(i)), 1170.12) and a five-year enhancement (§ 667, subd. (a)(1)). The court also struck the allegation that defendant had inflicted serious bodily injury. (§ 12022.7, subd. (a) [three-year enhancement].) Based on this negotiated disposition, the court imposed a sentence of two years in state prison.
The question arose whether defendant's prior conviction for burglary, which the court had stricken, nevertheless disqualified him from receiving day-for-day presentence conduct credits under former section 4019. (See id., subds. (b)(2), (c)(2).) Defendant contended that section 1385 permitted the court to disregard the prior conviction for purposes of credits, and the People disagreed. The court concluded it had no power to disregard the prior and awarded 116 days of conduct credits rather than the 232 to which defendant would otherwise have been entitled.
Defendant appealed the judgment as to credits. The Court of Appeal reversed to that extent and remanded, directing the trial court to "exercise its discretion [under section 1385] to decide whether its order striking enhancements should be applied so as to maximize defendant's presentence credits under the version of [former section 4019] applicable to this case."
We granted the People's petition for review.
The ultimate question before us is whether section 1385 authorizes a court to disregard the historical facts that disqualify a local prisoner from earning day-for-day conduct credits under former section 4019. We conclude the court's authority under section 1385 does not extend so far.
Section 1385 permits a court, "in furtherance of justice, [to] order an action to be dismissed." (Id., subd. (a).) Although the statute literally authorizes a court to dismiss only an entire criminal action, we have held it also permits courts to dismiss, or "strike," factual allegations relevant to sentencing, such as those that expose the defendant to an increased sentence. (E.g., People v. Superior Court (Romero), supra, 13 Cal.4th 497, 504 [prior serious or violent convictions alleged in order to invoke the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12 )]; People v. Burke, supra, 47 Cal.2d 45, 50-51 [prior narcotics conviction alleged in order to invoke former statute requiring state prison term].) However, the court's power under section 1385 is not unlimited; it reaches only the "individual charges and allegations in a criminal action." (People v. Thomas (2005) 35 Cal.4th 635, 644.) Thus, a court may not strike facts that that need not be charged or alleged, such as the sentencing factors that guide the court's decisions whether to grant probation (see Cal. Rules of Court, rule 4.414) or to select the upper, middle or lower term for an offense (id., rules 4.421, 4.423). (See generally In re Varnell (2003) 30 Cal.4th 1132, 1137, 1139.)
The historical facts that limit a defendant's ability to earn conduct credits do not form part of the charges and allegations in a criminal action. Certainly a court must afford a defendant due process -- notice and a fair hearing -- in determining the amount of conduct credit to which he or she is entitled. (People v. Duesler (1988) 203 Cal.App.3d 273, 276-277.) But the courts of this state have rejected the argument that the People must allege credit disabilities in the accusatory pleading or prove the disabling facts to the trier of fact. Concerning notice, the court in People v. Fitzgerald (1997) 59 Cal.App.4th 932 (Fitzgerald), held that an information charging the defendant with violent felonies gave him sufficient notice that, if convicted, section 2933.1 would restrict his presentence conduct credits to 15 percent of the maximum otherwise permitted. The People were not required to plead the effect that a conviction would have on credits. (Fitzgerald, at pp. 936-937.) Concerning proof, the court in People v. Garcia (2004) 121 Cal.App.4th 271 (Garcia) concluded that the question whether a defendant's current felony offenses were "violent" (§ 667.5), and thus limited his credits under section 2933.1, was "part of the trial court's traditional sentencing function" (Garcia, at p. 274), rather than a question that had to be decided by the jury. Although the federal Constitution requires that any fact, " '[o]ther than the fact of a prior conviction, . . . that increases the penalty for a crime beyond the prescribed statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt' " (Garcia, at p. 277, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490), facts invoked to limit conduct credits do not increase the penalty for a crime beyond the statutory maximum (Garcia, at p. 277).
Defendant argues we should adopt the rule that credit disabilities must formally be pled and proved in order to bring them within the court's discretionary power under section 1385 to strike the "charges and allegations in a criminal action." (People v. Thomas, supra, 35 Cal.4th 635, 644.) Absent constitutional compulsion, however, the matter is in the first instance one of legislative intent. " '[W]hen a pleading and proof requirement is intended, the Legislature knows how to specify the requirement' " (In re Varnell, supra, 30 Cal.4th 1132, 1141, quoting People v. Dorsch (1992) 3 Cal.App.4th 1346, 1350), but the Legislature specified no such requirement in former section 4019. Presumably the Legislature accepted the already established rule that facts invoked to limit credits need not be formally pled or proved. (See Garcia, supra, 121 Cal.App.4th 271, 276-280; Fitzgerald, supra, 59 Cal.App.4th 932, 936-937.)
Nor do we perceive anything in the legislative history of former section 4019 on which to base an implied pleading and proof requirement. Indeed, to attribute to the Legislature the unexpressed intent to create such a requirement would seem inconsistent with another, clearly expressed aspect of legislative intent. Former section 4019 was adopted during a state fiscal emergency as part of a larger measure intended to save the state money by releasing eligible prisoners early to reduce jail and prison populations and by emphasizing programs designed to prevent recidivism. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Increasing the rate at which prisoners could earn presentence conduct credits was one such measure. Throughout the legislation, however, the Legislature indicated its unwillingness to extend certain of the new ameliorative benefits to the same category of high-risk offenders who were disqualified from earning day-for-day conduct credits under former section 4019 because of their current serious felonies, their prior serious or violent felonies, or their status as registered sex offenders. For example, section 3000.03 prohibits the return of many parolees to prison for parole violations but excepts persons with the criminal history just mentioned. (§ 3000.03, subds. (a), (b).) Similarly, section 3050 requires the Department of Corrections and Rehabilitation, when releasing an inmate who has successfully completed an in-prison drug treatment program, to place the inmate in a 150-day residential drug treatment program, but this opportunity is withheld from persons with the specified criminal history. (§ 3050, subd. (a).) In both cases, the disability appears to be automatic; nothing in the statutory language suggests an exercise of discretion is involved. To infer a pleading and proof requirement for the credit disability specified in former section 4019, simply in order to bring the disabling facts within the court's discretionary power to strike "charges and allegations" (People v. Thomas, supra, 35 Cal.4th 635, 644; see § 1385, subd. (a)), would thus frustrate the Legislature's intent with respect to a specific category of high-risk offenders.
Moreover, because conduct credits are a matter in which courts traditionally exercise very limited discretion,*fn2 to adopt a pleading and proof requirement for credit disabilities, for no reason other than to bring them within the court's discretionary power to strike allegations (§ 1385, subd. (a)), seems unwise. A defendant is entitled to presentence conduct credits under section 4019 "unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned" (id., subd. (b)) or has "not satisfactorily complied with the reasonable rules and regulations established by the [local custodial authority]" (id., subd. (c) [current and former versions of statute identical in these respects]). The court awards such credits at the time of sentencing (§ 2900.5, subd. (a)), not as an exercise of discretion, but based on the sheriff's report of "the number of days that [the] defendant has been in custody and for which he or she may be entitled to credit," and only after hearing any challenges to the report. (Cal. Rules of Court, rule 4.310.) When the People claim the defendant has forfeited credits through misconduct, the People have the burden of proof. (People v. Johnson (1981) 120 Cal.App.3d 808, 815.) The court's resolution of such a dispute is reviewable for abuse of discretion, and the court enjoys some discretion in determining the amount of credit to be withheld for a serious act of misconduct. (Id., at p. 811; see also People ...