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Name: People v. Voravongsa
Case #: A130098
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 07/14/2011
Subsequent History: Rev. granted 8/31/11 (S195672)

Penal Code section 1385 does not give trial court the authority to dismiss prior convictions to accord a defendant more favorable presentence conduct credits. Defendant challenged the court’s denial of his Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to strike a prior serious felony, not only for probation eligibility, but also for enhanced presentence credits under the January 25, 2010 amendment to Penal Code section 4019. The First District found that a prior which precludes an award of enhanced presentence credits may not be stricken for credits purposes, noting related issues (i.e., whether the 4019 amendment is retroactive and whether disabling priors must be pled and proved) are currently before the California Supreme Court. The court found that a strike prior is a “sentencing factor” that survives a dismissal under section 1385. This follows from the fact there is no indication the Legislature intended that a pleading and proof requirement apply to the section 4019 amendments and priors are among the traditional facts considered by sentencing judges. Nor does due process mandate a pleading and proof requirement because the enhanced credits decrease rather than increase a defendant’s sentence. Further, the use of priors as “sentencing facts” is not altered even if the priors are dismissed under section 1385; they remain extant facts which preclude application of the enhanced sentencing credits.