P. v. Voravongsa 7/14/11 CA1/1

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State: California

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

Docket No: A130098

Case Date: 08/31/2011

Preview:Filed 7/14/11

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. BRIAN K. VORAVONGSA, Defendant and Appellant. I. INTRODUCTION Defendant Brian Voravongsa appeals from a judgment of conviction following a no contest plea to possessing a shank while in custody in violation of Penal Code section 4502, subdivision (a),1 and the admission of one prior "strike" conviction. The sole issue he raises on appeal is whether he is entitled to additional conduct credits under the amendments to section 4019 that became effective January 25, 2010. These amendments increased conduct credits for some defendants, but not for offenders who were required to register as a sex offender or had suffered a prior serious felony conviction. Defendant does not make a retroactivity claim, since he was sentenced after the amendments became effective. Rather, he contends the trial court should have considered his Romero motion,2 which the court denied, not only for the purpose of his eligibility for probation, but also his eligibility for additional conduct credits. He asks for a limited remand so the court can consider his motion for the latter purpose. A130098 (Sonoma County Super. Ct. No. SCR585540)

All further statutory references are to the Penal Code unless otherwise indicated. People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628].
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The issue defendant raises on appeal then, is whether a trial court can exercise its discretion under section 1385 to dismiss a prior conviction in order to award additional conduct credits otherwise unavailable under the January 25, 2010, amendments to section 4019. In In re Varnell (2003) 30 Cal.4th 1132 [135 Cal.Rptr.2d 619, 70 P.3d 1037] (Varnell), the Supreme Court held a trial courts power to dismiss under section 1385 extends only to matters that must be pled and proven, and not to "sentencing factors" that need not be pled and, even if they are, survive a dismissal under section 1385. We must therefore decide whether sex offender registration or a prior serious felony conviction are matters that must be pled and proven under the January 25, 2010, amendments to section 4019 and are subject to a motion to dismiss under section 1385, or whether they are sentencing factors beyond the purview of such a motion. We are not the first court to consider these questions. In fact, this case concerning the reach of section 1385, deals with the third of the trilogy of issues concerning the January 25, 2010, amendments to section 4019 the courts of appeal have addressed over the past year--the first being retroactivity and the second, whether sex offender registration or a prior serious felony conviction must be pled and proven but not considering the reach of section 1385. The courts of appeal have reached differing results, and the Supreme Court has granted review, on all three issues.3

E.g., People v. Brown (2010) 107 Cal.Rptr.3d 286, review granted June 9, 2010 (retroactivity); People v. Rodriguez (2010) 107 Cal.Rptr.3d 460, review granted June 9, 2010 (retroactivity); People v. Landon (2010) 107 Cal.Rptr.3d 847, review granted June 23, 2010 (retroactivity); People v. Pelayo (2010) 108 Cal.Rptr.3d 825, review granted July 21, 2010 (retroactivity); People v. Norton (2010) 109 Cal.Rptr.3d 197, review granted August 11, 2010 (retroactivity); People v. Otubuah (2010) 110 Cal.Rptr.3d 14, review granted July 21, 2010 (retroactivity); People v. Jones (2010) 115 Cal.Rptr.3d 258, review granted December 15, 2010 (plead and prove, and

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