P. v. Greenlow
Filed 7/12/13 P. v. Greenlow CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
>
THE PEOPLE, Plaintiff and Respondent, v. RODRELL GREENLOW, Defendant and Appellant. | A136913 (Solano County Super. Ct. No. VCR215143) |
Defendant
Rodrell Greenlow appeals from a conviction of
§ 496d, subd.(a)), following a negotiated disposition and no contest plea.
sentencing him to state prison rather
than county jail under the Realignment Act (§ 1170, subd. (h); Stats.
2011, 1st Ex. Sess. 2011–2012, ch. 15, § 1) because the prosecutor neither
pleaded nor proved the prior conviction which precluded county jail. He recognizes the Court of Appeal in
956, 961–965 (Griffis), rejected this
same argument, holding there is no pleading and proof requirement for use of a
prior conviction to disqualify a defendant from serving his or her sentence in
county jail. He claims this holding was incorrect. We disagree, follow Griffis, and affirm.
and Factual Background
We
recite only the facts material to the sole issue on appeal.
The
Solano
County District Attorney filed a complaint charging defendant with three
counts: felony
subd. (a)), felony receiving a stolen motor vehicle (Pen. Code, § 496d, subd.
(a)), and misdemeanor leaving the scene of an accident (Veh. Code,
§ 20002, subd. (a)). The complaint
also alleged defendant was not eligible to serve his sentence in county jail
under the Realignment Act because one of the statutory exceptions to county
jail sentencing applied.
Pursuant
to a negotiated disposition, defendant pleaded no contest to count 2, receiving
a stolen vehicle. Consistent with the
terms of the agreement, the trial court dismissed the section 667.5,
subdivision (b), prior prison term allegation and the remaining counts with
serve his sentence in county jail were not dismissed.
At
sentencing, the sole issue was where defendant would serve his sentence. The prosecutor maintained the allegation in
the complaint that defendant was ineligible to be sentenced to a term of
imprisonment in county jail under the Realignment Act was sufficient notice,
while defense counsel contended the
prior conviction rendering him ineligible for county jail had to be pleaded and
proved. The trial court indicated it
would order defendant housed in state prison, but gave him the opportunity to
withdraw his plea, which he did not do.
The court then sentenced defendant to a term of 16 months, awarded
credits of 112 days for time served, and imposed a $480 fine pursuant to
section 1202.4, to be stayed pending the successful completion of
parole.
“The
Realignment Act significantly changes felony punishment. Under prior law, felonies were offenses
punished by death or imprisonment in state prison. [Citation.]
The Realignment Act changes the definition of a felony to an offense
punishable by death, imprisonment in state
prison, or by ‘imprisonment in a county jail under the provisions of
subdivision (h) of Section 1170.’
[Citation.]†(
209 Cal.App.4th 353, 357.)
Defendants sentenced under the Realignment Act are generally committed
to county jail instead of state prison.
(Griffis, supra,
212 Cal.App.4th at p. 961.)
However, prison sentences are imposed if the defendant has current or
prior serious or violent felony convictions, is required to register as a sex
offender, or has sustained a section 186.11 aggravated white collar crime
enhancement. (Id. at pp. 961–962.)
In
Griffis, the Court of Appeal
considered the same argument defendant makes here, that “a prior conviction
that results in an increased penalty—like a sentence served in prison rather than
in jail—must be pled and proven to a jury . . . .†(Griffis,
supra, 212 Cal.App.4th at p.
962.) The appellate court rejected the
argument. (Id. at p. 963.) The court
explained that although a prison sentence includes a period of parole whereas a
jail sentence does not, an implied pleading and proof requirement is used
“ ‘only as to facts that define the permissible range of sentencing for an
offense by increasing the sentence, prescribing a minimum term, or entirely
precluding probation.’ †(
used to determine the location of the sentence, the pleading and proof
requirement did not apply. (
The
defendant in Griffis, as defendant
does here, also claimed the Legislature intended that a prior conviction
disqualifying a defendant from a jail sentence be formally pleaded and
proved. Griffis rejected this contention, as well, explaining
“ ‘ “ ‘when a pleading and proof requirement is intended, the
Legislature knows how to specify the requirement.’ â€. . . .’ [Citation.]â€
(Griffis, supra,
212 Cal.App.4th at p. 964.) Since “[t]he Legislature included no such
requirement in the Realignment Act, we must presume that its choice in that
regard was intentional.†(
Defendant
acknowledges Griffis rejected the
“pleading and proof†argument he has advanced, but contends
part company with that case.
The
judgment is affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies,
Acting P. J.
_________________________
Sepulveda,
J.
Penal Code unless otherwise indicated.
v. Harvey (1979) 25 Cal. 3d 754 (Harvey).
