P. v. Lara 3/30/11 CA6

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H036143

Case Date: 05/19/2011

Preview:Filed 3/30/11

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. RICARDO ANTONIO LARA, Defendant and Appellant.

H036143 (Santa Clara County Super. Ct. No. E1007527)

The question presented here is whether a defendants credit for presentence confinement can be reduced by virtue of a prior conviction when the allegations concerning that conviction are "struck" and "dismissed" as part of a plea bargain. We hold that where the plea bargain is silent concerning the extent to which such allegations are to be given effect, and the defendant does not contend that the bargain must be understood to categorically deny them any adverse effect, the question of their effect is vested in the discretion of the trial court, which may disregard them for purposes of presentence credit if it concludes that it would be in the interests of justice to do so. Here the court appeared to conclude that it was obligated to impose a reduction in presentence credits on the ground that defendant was not "really being punished" by the credit reduction. We reject this premise. We will therefore remand with directions to consider whether, in the trial courts discretion, defendant should be allowed credits calculated without regard to the prior conviction.

BACKGROUND According to the probation report, defendant and a companion were involved in an altercation outside a Sunnyvale bar resulting in injuries to a third person. A complaint was filed charging defendant and his companion with assault by means of force likely to produce great bodily injury. It was alleged that defendant personally inflicted great bodily injury (Pen. Code,

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