People v. Lara

Filed 7/19/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S192784

v. )

) Ct.App. 6 H036143

RICARDO ANTONIO LARA, )

) Santa Clara County

Defendant and Appellant. ) Super. Ct. No. E1007527

____________________________________)

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).)1 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

1 (Subsequently amended by Stats. 2010, ch. 426, § 2, Stats. 2011, ch. 15,

§ 482, Stats. 2011, ch. 39, § 53, and Stats. 2011, 1st Ex. Sess., ch. 12, § 35.)

All further statutory references are to the Penal Code, except as noted.

1

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.

I. BACKGROUND

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.

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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.

II. DISCUSSION

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.)

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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

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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

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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,2 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,

2 Although a state need not offer conduct credits, a prisoner‟s statutory

entitlement to them entails a liberty interest protected by due process that may not

be arbitrarily withheld. (Wolff v. McDonnell (1974) 418 U.S. 539, 556-557; cf.

People v. Duesler, supra, 203 Cal.App.3d 273, 277.)

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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 v. Deusler, supra, 203 Cal.App.3d 273.) But no authority suggests

the court‟s discretion in the matter is so broad as to permit it to withhold conduct

credits from a prisoner who has satisfied the statutory prerequisites and is entitled

to receive them,3 or to grant credits to a defendant who is ineligible to receive

them by reason of misbehavior or statutory disability.

Defendant contends that credit disabilities must be pled and proved to the

trier of fact because they increase punishment. With this argument, defendant in

effect seeks to extend the rule of a line of cases requiring formal pleading and

proof of facts that increase a defendant‟s sentence (e.g., People v. Ford (1964) 60

Cal.2d 772, 794 (Ford)) or that completely disqualify a defendant from receiving

probation (People v. Lo Cicero (1969) 71 Cal.2d 1186, 1192-1193 (Lo Cicero)).

We do not believe the rule can properly be extended to require similarly formal

determination of the facts that limit a prisoner‟s ability to earn conduct credits.

The defendant in the leading case, Ford, supra, 60 Cal.2d 772, was convicted

and sentenced to death for homicide and also to a term of imprisonment for a

variety of noncapital crimes including burglary, robbery and kidnapping. The trial

court had increased the sentences for each of the noncapital offenses under former

3 A prisoner may waive presentence credits, including conduct credits, as

part of a negotiated disposition. (See, e.g., People v. Arnold (2004) 33 Cal.4th

294, 302; People v. Black (2009) 176 Cal.App.4th 145, 152-155.)

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sections 30244 (minimum sentences for persons armed with deadly weapons or

previously convicted of felonies) and 120225 (enhancements for committing

felonies while carrying dangerous weapons), purporting to find the requisite facts

true even though they had not had been alleged in the information or presented to

the jury. (Ford, at p. 794.) We struck these portions of the judgment, holding as

follows: “Before a defendant can properly be sentenced to suffer the increased

penalties [i.e., a minimum term under § 3024 or an enhanced term under § 12022]

flowing from either such finding . . . the fact of the prior conviction or that the

defendant was thus armed must be charged in the accusatory pleading, and if the

defendant pleads not guilty thereto the charge must be proved and the truth of the

allegation determined by the jury, or by the court if a jury is waived.” (Ford, at

p. 794; see also People v. Hernandez (1988) 46 Cal.3d 194, 204-206 [requiring

pleading and proof of three-year enhancement for kidnappings committed for the

purpose of rape (§ 667.8)].) In Lo Cicero, supra, 71 Cal.2d 1186, we extended the

rule of Ford, supra, 60 Cal.2d 772, to require pleading and proof of prior narcotics

convictions used to render a defendant completely ineligible for probation under

Health and Safety Code former section 11715.6.6 We explained that “[t]he denial

of opportunity for probation involved here is equivalent to an increase in penalty,

and the principle declared in Ford should apply.” (Lo Cicero, at p. 1193.)

Our 1964 decision in Ford, supra, 60 Cal.2d 772, anticipated in some

respects later developments in federal constitutional law. In 2000, as noted, the

United States Supreme Court in Apprendi v. New Jersey, supra, 530 U.S. 466,

4 (As amended by Stats. 1957, ch. 1617, § 3, p. 2964.)

5 (As amended by Stats. 1953, ch. 36, § 1, p. 654.)

6 (As amended by Stats. 1959, ch. 1112, § 13, p. 3196.)

8

490, interpreted the Sixth and Fourteenth Amendments to the federal Constitution

as requiring that, “[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Our earlier decision

in Ford, while speaking more broadly, was motivated by the same basic concern

that the jury’s verdict must authorize the sentence. (See Ford, at p. 794 [a

defendant cannot “properly be sentenced to suffer the increased penalties flowing

from” a finding that has not been “charged in the accusatory pleading . . . and the

truth of the allegation determined by the jury”].)7 In contrast, we have never

applied Ford to require formal pleading and proof of facts that do not define the

range of permissible sentencing for an offense by enhancing the term, prescribing

a minimum term, or utterly precluding probation. For example, in In re Varnell,

supra, 30 Cal.4th 1132, we refused to extend Ford to require pleading and proof

of the facts that disqualified a narcotics offender for mandatory probation and drug

treatment under section 1210.1, because the defendant remained eligible for

probation under the more general terms of section 1203. Rather than defining the

range of permissible sentencing, we explained, such facts functioned as

“ „sentencing factors‟ ” that “ „support[ed] a specific sentence within the range

authorized by the jury‟s finding that the defendant is guilty of a particular

offense.‟ ” (In re Varnell, supra, at p. 1135 & fn. 3, quoting Apprendi v. New

Jersey, supra, 530 U.S. 446, 494, fn. 19; see also People v. Dorsch, supra, 3

Cal.App.4th 1346, 1350 [holding the People need not formally plead and prove

7 Cf. Blakely v. Washington (2004) 542 U.S. 296, 304: “When a judge

inflicts punishment that the jury‟s verdict alone does not allow, the jury has not

found all the facts „which the law makes essential to the punishment,‟ [citation]

and the judge exceeds his proper authority.”

9

facts that ordinarily bar probation under § 1203, because the statute gives the court

discretion to grant probation despite the disqualifying facts “in unusual cases”

(§ 1203, subd. (e))].)

The facts that disqualify a local prisoner from earning day-for-day conduct

credits under former section 4019 are unlike sentencing factors in that they do not

guide the court in selecting a sentence from within the range established by statute.

Like sentencing factors, however, the disqualifying facts cannot remove a sentence

from the statutory range. Instead, they merely limit a defendant‟s ability to earn

credits against a sentence for good behavior. For this reason, to hold that the

disqualifying facts need not formally be pled and proved does not implicate the

core concern underlying the rule of Ford, supra, 60 Cal.2d 772 — the need to

ensure that the jury‟s verdict authorizes the sentence.

Defendant insists that to limit a prisoner‟s opportunity to earn conduct credits

is to increase punishment. Reasoning by analogy, defendant notes that a law

reducing conduct credits, as applied to a prisoner whose offense preceded the

law‟s effective date, implicates the ex post facto clause (U.S. Const., art. I, § 10,

cl. 1; Cal. Const., art. I, § 9) because it “substantially alters the consequences

attached to a crime already completed, and therefore changes „the quantum of

punishment.‟ ”8 (Weaver v. Graham (1981) 450 U.S. 24, 33; cf. Lynch v. Mathis

(1997) 519 U.S. 433, 441-443.) We need not take issue with the proposition that a

person who is released a day early is punished a day less. The very purpose of

conduct credits is to foster constructive behavior in prison by reducing

punishment. However, the conclusion that credit-limiting facts must formally be

8 No question under the ex post facto clause is before us because defendant

committed his offense after former section 4019 took effect.

10

pled and proved does not follow. As explained, we have imposed such a

requirement only as to facts that define the permissible range of sentencing for an

offense by increasing the sentence, prescribing a minimum term, or entirely

precluding probation. (E.g., People v. Hernandez, supra, 46 Cal.3d 194, 204-206;

Lo Cicero, supra, 71 Cal.2d 1186, 1192-1193; Ford, supra, 60 Cal.2d 772, 794.)9

We thus turn to the disposition. The People were not, as we have explained,

required to plead defendant‟s credit disabilities in the complaint or prove them to

the trier of fact. As also noted, however, defendant is entitled to due process in the

award of credits, which in this context entails sufficient notice of the facts that

restrict his ability to earn credits and, if he does not admit them, a reasonable

opportunity to prepare and present a defense. (Cf. Fitzgerald, supra, 59

9 Today local prisoners may earn day-for-day credit without regard to their

prior convictions. (See § 4019, subds. (b), (c) & (f), as amended by Stats. 2011,

ch. 15, § 482.) This favorable change in the law does not benefit defendant

because it expressly applies only to prisoners who are confined to a local custodial

facility “for a crime committed on or after October 1, 2011.” (§ 4019, subd. (h),

italics added.)

Defendant argues the Legislature denied equal protection (see U.S. Const.,

14th Amend.; Cal. Const., art. I, § 7) by making this change in the law expressly

prospective. We recently rejected a similar argument in People v. Brown (2012)

54 Cal.4th 314, 328-330 (Brown).) As we there explained, “ „[t]he obvious

purpose‟ ” of a law increasing conduct credits “ „is to affect the behavior of

inmates by providing them with incentives to engage in productive work and

maintain good conduct while they are in prison.‟ [Citation.] „[T]his incentive

purpose has no meaning if an inmate is unaware of it. The very concept demands

prospective application.‟ ” (Brown, at p. 329, quoting In re Strick (1983) 148

Cal.App.3d 906, 913.) Accordingly, prisoners who serve their pretrial detention

before such a law‟s effective date, and those who serve their detention thereafter,

are not similarly situated with respect to the law‟s purpose. (Brown, at pp. 328-

329.)

11

Cal.App.4th 932, 936-937; People v. Duesler, supra, 203 Cal.App.3d 273, 276-

277.)

In the case before us, the historical fact that limits defendant‟s presentence

conduct credits under former section 4019 is his prior conviction for first degree

burglary (§§ 459, 460, subd. (a)) because it is a serious felony (see § 1192.7,

subd. (c)(1)(18)). The People pled the prior conviction for the different purpose of

triggering various statutory sentence enhancements. Nevertheless, as we have

explained, this pleading was sufficient to inform defendant that his presentence

conduct credits might be limited. The trial court struck the allegation under

section 1385 in order to avoid the enhancements, but “when a court has struck a

prior conviction allegation it has not „wipe[d] out‟ that conviction as though the

defendant had never suffered it; rather, the conviction remains a part of the

defendant‟s personal history” and available for other sentencing purposes.

(People v. Garcia (1999) 20 Cal.4th 490, 499; see In re Varnell, supra, 30 Cal.4th

1132, 1138; People v. Burke, supra, 47 Cal.2d 50, 51.)10

Having thus given sufficient notice of the prior, the People also proved it

sufficiently through the probation report. Faced with the report‟s assertion that a

prior conviction did exist, and having the duty to make an offer of proof to

preserve for appeal any claim of error in the report (e.g., People v. Welch (1993) 5

10 We find nothing of relevance to this case in subdivision (c)(1) of section

1385, which provides that, “[i]f the court has the authority . . . to strike or dismiss

an enhancement, the court may instead strike the additional punishment for that

enhancement in the furtherance of justice . . . .” Former section 4019, in limiting

the ability of prisoners with certain prior convictions to earn conduct credits at the

maximum rate, does not impose “additional punishment for [any] enhancement.”

(§ 1385, subd. (c)(1).) Rather, the credit limitations in former section 4019

operate because of the historical fact of a prior conviction without reference to

whether any enhancement has been found true. (See id., subds. (b)(2), (c)(2).)

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Cal.4th 228, 234-235), defendant raised no factual objection and made no offer of

proof. Instead, he presented the purely legal argument that credit-limiting facts

must formally be pled and proved to the trier of fact. Having correctly rejected

that argument, the trial court reasonably relied on the report in determining

defendant‟s presentence credits.

III. DISPOSITION

The judgment of the Court of Appeal is reversed.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lara

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 193 Cal.App.4th 1393

Rehearing Granted

__________________________________________________________________________________

Opinion No. S192784

Date Filed: July 19, 2012

__________________________________________________________________________________

Court: Superior

County: Santa Clara

Judge: Kenneth Paul Barnum

__________________________________________________________________________________

Counsel:

William M. Robinson, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Eric D. Share,

Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

William M. Robinson

100 N. Winchester Blvd., Suite 310

Santa Clara, CA 95050

(408) 241-6171

Gerald A. Engler

Assistant Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-1375