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.



                                          2
     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.)

                                          3
     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

                                          4
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

                                          5
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.)




                                          6
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.)




                                           7
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).)




                                            12
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.




                                         13
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
