Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F03572
HULL, J.Defendant Rick James Smith entered into a bargain in which he pleaded no contest to a charge of knowing receipt of a stolen vehicle, in exchange for a promise of no more than 16 months in state prison, and the indication that the People would move to dismiss a strike in the interests of justice. The trial court granted the motion to dismiss the strike. The factual basis for the plea was that on or about May 1, 2008, defendant knowingly possessed a stolen car. The trial court accepted the plea.
Before sentencing, the trial court appointed an attorney to consider a motion to withdraw the plea. At sentencing, that attorney stated she declined to file such a motion. The trial court then sentenced defendant to 16 months in state prison, and defendant timely filed this appeal. The trial court denied defendant’s request for a certificate of probable cause.
On appeal, defendant contends he was deprived of his right to have “an effective motion” by counsel to withdraw his plea. However, after defendant’s opening brief was filed, the California Supreme Court held that such a claim is not cognizable absent a certificate of probable cause, and affirmed a Court of Appeal decision to dismiss such an appeal. (People v. Johnson (2009) 47 Cal.4th 668, 681; see People v. Brown (2010) 181 Cal.App.4th 356, 363 [dismissing appeal on similar procedural facts].) Accordingly, we do not reach the merits of defendant’s claim.
The trial court awarded defendant 296 days of presentence credits, and 148 days of conduct credits. The recent amendments to Penal Code section 4019 do not entitle defendant to additional conduct credits, because he has a prior conviction for first degree burglary. (Pen. Code, § 459.) That conviction disqualifies him from the new credit formula. (Pen. Code, § 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
The fact that defendant’s disqualifying conviction had been alleged as a strike and then was dismissed by the trial court on the People’s motion is not relevant. Penal Code section 4019 does not require that a prior disqualifying conviction be pleaded and proven. (See In re Varnell (2003) 30 Cal.4th 1132, 1138 [stricken prior made defendant ineligible for Proposition 36 treatment; “while a dismissal under [Penal Code] section 1385 ameliorates the effect of the dismissed charge or allegation, the underlying facts remain available for the court to use”]; People v. Garcia (1999) 20 Cal.4th 490, 502-503 [a prior conviction allegation may be stricken for one purpose, but used for another].)
Disposition
The appeal is dismissed.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE, J.