>P. v.
Jeffries

 

 

 

 

 

 

 

Filed 9/11/12  P. v.
Jeffries CA3

 

 

 

 

NOT
TO BE PUBLISHED

 

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

THE PEOPLE,             Plaintiff and Respondent,        v.   MARTIN E. JEFFRIES,             Defendant and Appellant.

C069335   (Super. Ct. No. 10F05786)

 

 

 

 

     Defendant Martin
E. Jeffries pleaded guilty to first degree
burglary and admitted a prior strike and a prior prison term.  The trial court sentenced him to nine years
in prison. 

     Defendant contends
(1) his presentence credit should not have been subject to the 15 percent limit
set forth in Penal Code section 2933.1, and (2) he is entitled to additional
presentence credit because the prospective application of the Criminal Justice
Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15) violates equal
protection.

     We will affirm the
judgment.

BACKGROUND

     According to the
factual basis for the plea, defendant entered the attached garage of John
Kotarsky’s home on September 5,
2010, with the intent to commit larceny.  When Kotarsky confronted defendant in the
garage, defendant departed. 

     Defendant pleaded
guilty to first degree burglary.  (Pen.
Code, § 459.)href="#_ftn1" name="_ftnref1" title="">[1]  He admitted a prior strike and a prior prison
term.  (§§ 1170.12, 667, subds. (b)-(i), 667.5, subd.
(b).)  The trial court sentenced him to
the stipulated term of nine years in prison. 


DISCUSSION

I

     Defendant contends
he is not subject to the 15 percent limit on presentence conduct credit set
forth in section 2933.1 because the information did not plead the burglary as a
violent felony and defendant did not plead guilty to the burglary as a violent
felony.  We disagree.

     Section 2933.1
provides that presentence conduct credit is limited to 15 percent of time
served for any defendant with a current conviction for a violent felony.  (§ 2933.1, subd. (c).)  First degree burglary is a serious felony
(§ 1192.7, subd. (c)(18)), but it is also a violent felony when “it is
charged and proved that another person, other than an accomplice, was present
in the residence during the commission of the burglary.”  (§ 667.5, subd. (c)(21).)

     The information
alleged that defendant unlawfully entered an inhabited dwelling house and
portion of a building “occupied” by Kotarsky. 
In a case decided after briefing was concluded, the California Supreme
Court said due process requires only
that a defendant receive “sufficient notice of the facts that restrict his
ability to earn credits and, if he does not admit them, a reasonable
opportunity to prepare and present a defense.” 
(People v. Lara (2012)
54 Cal.4th 896, 906 (Lara).)

     During recitation
of the factual basis for the plea, defense counsel added additional factual
detail with the prosecutor’s approval.  href="http://www.mcmillanlaw.com/">Defense counsel added that defendant
“entered three feet into the garage and was confronted with the owner, who had
a gun, and [defendant] exited.” 

     The trial court
subsequently informed defendant during the plea colloquy that he would be
subject to a 15 percent limitation on presentence conduct credit, and there was
no objection. 

     On this record,
there was sufficient notice and proof to establish the burglary as a violent
felony. 

II

     The Realignment
Act amended the law to provide two days of credit for every two days of
presentence custody.  (§ 4019,
subds. (b), (c), (f).)  Such credit is
not reduced by a defendant’s prior conviction for a serious or violent felony,
but it only applies prospectively to defendants serving presentence
incarceration for crimes committed on or after October 1, 2011. 
(§ 4019, subd. (h).)  The
change in the law does not apply to defendant because he committed the burglary
on September 5, 2010. 

     Defendant
nonetheless contends that prospective application of the Realignment Act
violates equal protection.  However, the
California Supreme Court indicated otherwise in Lara, supra, 54 Cal.4th at p. 906, fn. 9.  Citing People
v. Brown (2012) 54 Cal.4th 314 (Brown),
the Supreme Court concluded in this context that “prisoners who serve their
pretrial detention before such a law’s effective date, and those who serve
their detention thereafter, are not similarly situated with respect to the
law’s purpose.  (Brown, at pp. 328–329.)”  (>Lara, supra, 54 Cal.4th at p. 906, fn.
9.)

     In addition, the
Realignment Act did not repeal section 2933.1, which limits presentence conduct
credit to 15 percent

 â€œ[n]otwithstanding Section 4019 or any other
provision of law[.]”  (§ 2933.1,
subd. (c).)

DISPOSITION

     The judgment is affirmed. 


 

 

 

                                         MAURO          , J.

 

 

 

We concur:

 

 

 

          HULL           , Acting P. J.

 

 

 

          HOCH           , J.