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Name: People v. James
Case #: D057527
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/24/2011
Subsequent History: Rev. granted 8/31/11 (S195512)

No pleading and proof requirement applies to the less favorable credit provision of Penal Code section 4019, and a court may consider a dismissed prior serious felony for purposes of sentencing. Appellant pled guilty to one count of possession of a controlled substance and admitted a prior prison term. Other allegations, including a strike prior, were dismissed. At sentencing the court denied him enhanced presentence credits, finding appellant’s strike prior rendered him ineligible. Under section 2900.5, a defendant sentenced to prison is entitled to credits for all time in custody prior to sentencing. On January 25, 2010, section 4019 was amended to allow two days credit for every two days in custody; it does not apply, however, to defendants who are required to register as sex offenders, who are committed for a serious felony or who have a prior serious/violent felony. Appellant contended that although he had a prior serious felony, he should receive the more favorable conduct credits because his prior was not pled and proved. However, even where a prior serious felony is dismissed under section 1385, it remains a part of defendant’s history and may be considered at sentencing. The prosecution is not required to plead and prove a serious felony prior to application of the less favorable credit provisions of section 4019.