Filed 10/15/13 P. v. Martinez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038945
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1089256)

         v.

SALVADOR MARTINEZ,

         Defendant and Appellant.


         Defendant Salvador Martinez entered a negotiated guilty plea to assault with a
deadly weapon and reckless driving while evading the police. He also admitted
allegations for purposes of sentence enhancement that he personally inflicted great bodily
injury (GBI) on the assault victim and committed both offenses for the benefit of a
criminal street gang. Finally, he admitted an allegation that he had served a prior prison
term, for purposes of sentence enhancement. In sentencing him to 14 years and eight
months pursuant to the plea bargain, the trial court imposed a three-year term for the
assault conviction plus 10 years for the gang enhancement and an eight-month term for
the evasion conviction plus one-year for the gang enhancement. It then struck a
three-year punishment for the GBI admission and a one-year punishment for the
prison-term admission under Penal Code section 1385, subdivision (c)(1) (striking
enhancement or enhancement punishment in furtherance of justice).1 It then awarded
him presentence credits of 748 actual days and 112 conduct credits. On appeal,
         1
             Further unspecified statutory references are to the Penal Code.
defendant contends that the trial court erred by restricting his conduct credits. We
disagree and affirm the judgment.
                                     BACKGROUND
       The trial court expressly stated that it was striking the punishment for the GBI
enhancement to achieve the agreed-upon prison term. And it expressly calculated the
conduct credits to be 15 percent of actual custody days in accordance with section2933.1,
which imposes that limit upon persons who are convicted of a violent felony. Section
667.5, subdivision (c)(8), defines a violent felony as “Any felony in which the defendant
inflicts great bodily injury on any person... which has been charged and proved....”
                                       DISCUSSION
       Defendant contends that, rather than 15 percent conduct credits, the trial court
should have awarded him two-for-four conduct credits under the September 2010 version
of section 4019. He claims that section 2933.1 does not apply to him because he was not
a person convicted of a violent felony. He so reasons because the trial court struck the
punishment for the GBI admission. He acknowledges that the case of In re Pacheco
(2007) 155 Cal.App.4th 1439, addressed and rejected this identical contention. He urges,
however, that Pacheco was wrongly decided and should not be followed. He argues that
Pacheco rested upon a perceived distinction between striking an enhancement-allegation
admission in its entirety (rendering the person no longer convicted of a violent felony)
and striking the punishment (leaving the conviction extant). (Id. at pp. 1444-1445 [“It is
the conviction, and not the punishment, that is determinative.”].) According to
defendant, the distinction is premised upon the erroneous notion that “a reduction in
credits is not considered ‘punishment’ under the law.” (Id. at p. 1445.) Defendant poses
that a reduction in credits is punishment and, thus, when the trial court struck the
substantive punishment it also struck the credit-restricting punishment. Defendant’s
analysis is erroneous.



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       In People v. Lara (2012) 54 Cal.4th 896, 900, 902, 906 (Lara), the court held that
a trial court does not have discretion under section 1385 to “strike” or disregard the
historical facts that disqualify a local prisoner from earning one-for-one conduct credits
under the January 2010 version of Penal Code section 4019. It reasoned as follows:
“Section 1385 permits a court, ‘in furtherance of justice, [to] order an action to be
dismissed.’ [Citation.] 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. [Citations.] However, the court’s power under section 1385 is not unlimited; it
reaches only the ‘individual charges and allegations in a criminal action.’ [Citation.]
Thus, a court may not strike facts that need not be charged or alleged, such as the
sentencing factors that guide the court’s decisions whether to grant probation [citation] or
to select the upper, middle or lower term for an offense [citation].” (Lara, supra, at
pp.900-901.) And it held: “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. [Citation.] 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.” (Id. at p. 901.)
       Here, the historical fact that limits defendant’s presentence conduct credits is his
GBI admission that rendered his conviction a violent felony. The People pleaded the
GBI allegation for the different purpose of triggering an additional three-year
punishment. Nevertheless, as the Supreme Court explained in Lara, this pleading was

                                               3
sufficient to inform defendant that his presentence conduct credits might be limited.
(Lara, supra, 54 Cal.4th at p. 906.) The trial court struck the GBI punishment under
section 1385 in order to effectuate the plea bargain. However, “‘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.” (Lara, supra, at
pp.906-907.)
       In short, the trial court properly found that defendant had been convicted of a
violent felony and was subject to the presentence credit-restricting formula of
section2933.1.
                              ABSTRACT OF JUDGMENT
       The parties agree that the abstract of judgment does not reflect imposition of the
one-year gang enhancement attached to the evasion conviction and erroneously reflects
imposition of the one-year prison-term enhancement.




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                                    DISPOSITION
      The judgment is affirmed. The abstract of judgment is amended to include a
one-year enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) as to count 3 and delete the
one-year enhancement (Pen. Code, § 667.5, subd. (b)) as to count 3.




                                                            Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Elia, J.




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