Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA078005. Thomas R. Sokolov, Judge.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Defendant and appellant Anthony Daniel Abeyta appeals following a plea of no contest, arguing that in light of the trial court’s striking his prior strike pursuant to Penal Code section 1385, he was entitled to one-for-one conduct credit under the version of section 4019 in effect at the time of his sentencing. In view of recent authority holding that a trial court has discretion to utilize section 1385 for the purpose of awarding section 4019 credits, we reverse the custody credits award and remand the matter to enable the trial court to exercise its discretion in that regard. (See People v. Koontz (2011) 193 Cal.App.4th 151.) In all other respects, we affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint filed by the Los Angeles County District Attorney charged appellant in count 1 with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); in count 2 with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); and in count 3 with being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). The complaint further alleged that appellant had suffered three prior convictions for serious or violent felonies within the meaning of the “Three Strikes law” (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)), and had suffered two prior convictions within the meaning of section 667.5, subdivision (b).
After initially pleading not guilty, appellant waived his constitutional right to a trial and pleaded no contest to counts 1 through 3. As part of the plea, the People moved to strike two of the strike convictions and, over the People’s objection, the trial court agreed to strike the third strike conviction and impose a sentence of “3 years state prison at 50 percent time.” Appellant admitted that he suffered a prior strike conviction in violation of section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d), and the prior convictions in violation of section 667.5, subdivision (b). Before imposing appellant’s sentence, the trial court indicated that it had “considered everything in this case, ” and imposed the high term of three years in state prison on count 1, struck the remaining strike conviction and imposed several fines and fees. The trial court imposed the sentence on counts 2 and 3 to run concurrently.
The court and counsel then discussed the issue of custody credits, with appellant’s counsel stating that appellant had served 53 actual days and arguing he should be entitled to 106 days’ credit. The trial court responded: “[T]he court feels under the law he’s only entitled to half time credits prior to sentencing even though he does not have the strike presently. The court did strike the strike. And he was charged with the strike. And I believe the court—I’m saying this for possible appellate reasons. The court feels that he was—the law says charged with a strike. He was charged with a strike. Albeit he was not convicted of a strike. The court is only giving him the 26 days.” Accordingly, the trial court awarded 79 days presentence custody credit, comprised of 53 days of actual custody and 26 days of conduct credit.
Appellant appealed the custody credits calculation.
DISCUSSION
A defendant committed to state prison is entitled to credit against the prison term for all days spent in custody prior to sentencing. (§ 2900.5, subds. (a), (c).) The defendant may also earn additional presentence conduct credit for satisfactory performance of assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). “‘Conduct credit’ collectively refers to worktime credit pursuant to section 4019, subdivision (b), and to good behavior credit pursuant to section 4019, subdivision (c). [Citation.]” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) Prior to January 2010, section 4019 provided that a defendant earned two days of conduct credit for every four actual days served in local custody. (Former § 4019, subds. (b), (c).) Effective January 25, 2010, the Legislature amended section 4019 to provide for increased conduct credit for defendants who had no current or prior convictions for serious or violent felonies and who were not required to register as sex offenders. (People v. Koontz, supra, 193 Cal.App.4th at p. 154.) These defendants became eligible to earn two days of conduct credit for every two days of actual custody—“commonly referred to as one-for-one credits.’” (Ibid.)
Subsequently, on September 28, 2010, the Legislature deleted the portion of section 4019 providing for one-for-one credits. (People v. Koontz, supra, 193 Cal.App.4th at p. 154; see Stats. 2010, c. 426 (S.B. 76), § 2, eff. Sept. 28, 2010.)
For a defendant who had suffered a prior felony strike, however, subdivisions (b)(2) and (c)(2) of amended section 4019 in effect between January and September 2010 provided that the defendant was not entitled to the benefit of the more liberal conduct credits. (See generally Stats. 2009-2010, 3rd Ex.Sess., c. 28 (S.B. 18), § 50, eff. Jan. 25, 2010.) Appellant contends that the trial court’s striking his prior strike conviction pursuant to section 1385 made him eligible for the favorable conduct credits of former section 4019. He argues that the credit limitation for defendants who have one or more prior serious felony strikes in section 4019, subdivisions (b)(2) and (c)(2), is inapplicable when the strike is stricken under section 1385, given the absence of any legislative intent to limit the trial court’s discretion to make a defendant eligible for the more liberal conduct credits.
Recently, the court in People v. Koontz, supra, 193 Cal.App.4th at page 154 found merit to appellant’s position, holding “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. [Citations.]” Although the People here rely on In re Pacheco (2007) 155 Cal.App.4th 1439 to argue that section 1385 cannot be used to affect conduct credit eligibility, the Koontz court relied on the case for the opposite proposition. In In re Pacheco, the trial court utilized section 1385 to strike the additional punishment imposed by a section 12022.7 enhancement admitted by the defendant. (In re Pacheco, supra, at p. 1442.) Rejecting the argument that striking the enhancement for sentencing purposes also enabled the defendant to earn additional worktime custody credits, the Pacheco court stated: “Section 1385, subdivision (c)(1) authorizes the trial court to strike or dismiss an enhancement, or to ‘instead strike the additional punishment for that enhancement in the furtherance of justice.’ Having decided to afford leniency in this case, the sentencing court had two options. It could either strike the enhancement allegation in its entirety or strike the additional three-year punishment for the enhancement specified in section 12022.7, subdivision (a). Here, the trial court chose the latter option. The fact of the enhancement, however, remained.” (In re Pacheco, supra, at p. 1444.)
Although In re Pacheco concluded that additional worktime custody credits were not warranted, the Koontz court interpreted the cases as standing for the broader proposition that “section 1385 vests trial courts with the discretion to strike a prior conviction for different sentencing purposes.” (People v. Koontz, supra, 193 Cal.App.4th at p. 155.) We agree. Appellant’s plea agreement was akin to that in People v. Koontz, where “the prior serious felony conviction was pleaded and proved. The trial court struck the prior serious felony conviction based on a written plea agreement that lacked a Harvey waiver and made no mention of one-for-one presentence conduct credits. ‘Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed [prior conviction enhancement].’ (People v. Harvey [(1979)] 25 Cal.3d [754], 758.)” (People v. Koontz, supra, at pp. 155–156.)
Here, appellant suffered an adverse sentencing consequence notwithstanding the trial court’s utilization of section 1385. (See People v. Koontz, supra, 193 Cal.App.4th at p. 154 [“the January 25, 2010 version of section 4019 mitigates punishment by reducing the period of imprisonment” and “[a] prisoner released from prison one day sooner has been punished one day less in prison”].) But appellant received the more stringent conduct credit award because the trial court understood its discretion to be limited. Although the trial court struck the strike conviction for the purposes of sentencing under the Three Strikes law, it made clear on the record that it did not believe it had discretion to strike the strike for the purpose of awarding custody credits under section 4019. “[W]here the record affirmatively discloses that the trial court misunderstood the scope of its discretion, ” remand for resentencing is proper. (People v. Fuhrman (1997) 16 Cal.4th 930, 944; see People v. Meloney (2003) 30 Cal.4th 1145, 1165 [remanding for resentencing where trial court mistakenly believed it lacked discretion to impose a lesser sentence]; People v. Sotomayor (1996) 47 Cal.App.4th 382, 391 [“sentencing record as a whole” indicated trial court “was unaware of his sentencing discretion”].) Accordingly, “[i]t is for the trial court to decide whether, in the interests of justice, the prior conviction should be stricken for purposes of awarding section 4019 one-for-one conduct credits.” (People v. Koontz, supra, 193 Cal.App.4th at p. 156.) We express no opinion on how the trial court should exercise its discretion.
We do not agree with appellant’s alternative argument that equal protection principles mandate an award of one-for-one custody credits. (See, e.g., In re Martinez (2003) 30 Cal.4th 29, 36 [pretrial detainees are not similarly situated to prison inmates and their respective confinement serves different functions]; People v. Buckhalter (2001) 26 Cal.4th 20, 36 [“the pre- and postsentence credit systems serve disparate goals and target persons who are not similarly situated”]; People v. Heard (1993) 18 Cal.App.4th 1025, 1030–1031 [“Pretrial felony detainees and state prison inmates are not similarly situated with respect to the purposes of the custody credit statutes.... We find no invidious classification or equal protection violation in the calculation of appellant’s conduct credits under section 4019”].)
DISPOSITION
The matter is remanded to the trial court to determine whether, pursuant to section 1385, appellant’s prior strike conviction should be stricken for the purpose of awarding one-for-one presentence conduct credits. If the strike is stricken for that purpose, the trial court is directed to award additional presentence credits and to prepare and send an amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.