P. v. Pollock
Filed 1/11/13 P. v. Pollock CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
GREGORY ALLEN POLLOCK,
Defendant
and Appellant.
E055137
(Super.Ct.No.
FSB1004611)
OPINION
APPEAL from the Superior Court of
Bernardino County.
Kenneth Barr, Judge. Affirmed.
Patrick J. Hennessey, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General00000[[[[[[[[--, Lilia E. Garcia and Kristine A. Gutierrez,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Gregory Allen Pollock,
pled no contest to possessing cocaine
base for sale and the trial court sentenced him, as agreed, to the low term
of three years in prison after striking a “strike.†Defendant argues the case should be remanded
for re-sentencing because the trial court should have sentenced him to serve his
time in county jail, rather than state prison, under recent legislation known
as the Realignment Act. As discussed
below, the very fact that defendant had a prior “strike†conviction, even if
stricken for sentencing purposes, made him ineligible to serve his time in
county jail under the Realignment Act.
On October 20, 2010, police officers executing a search warrant at a residence found
methamphetamine, cocaine base, a digital scale and packaging materials in a
bedroom that defendant occupied.
On November 3, 2010, the People filed a complaint charging defendant with
(Health & Saf. Code, § 11378) and possessing cocaine base for sale (Health
& Saf. Code, § 11351.5) and alleging that he had a prior strike conviction
(Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
On January 14, 2011, defendant pled no contest to the cocaine base charge. He was to return to court for sentencing on
March 18, 2011, at which time he would be sentenced to the low term of three
years in prison at half time. Under the
released immediately, but if he failed to appear for sentencing or committed
any new crimes, he would receive the maximum sentence of five years at half
time.
After several continuances at
defendant’s request, defendant failed to appear at his October 21, 2011 sentencing hearing. At his
actual sentencing hearing on October 26, 2011, defendant
admitted violating the Cruz waiver
and waived 17 days of custody credits in exchange for receiving the three-year
sentence originally contemplated.
Defense counsel and the trial court discussed whether defendant should
be committed to state prison or county jail.
The court relied on section 1170, subdivision (h)(3), to commit
defendant to state prison, reasoning that the statute disqualifies from county
jail any defendant who has a serious or violent felony prior conviction. Defense counsel objected, arguing that any
disqualifying prior convictions would have to be pled and proven, whereas
defendant’s strike prior had been dismissed without having been pled or
proven. The trial court then explained
that, based on its research into the Realignment Act, it concluded that the
disqualifying prior need not be pled and proven. The court remanded defendant to state prison
to serve his three-year term. This appeal
followed.
The question here is whether the Criminal Justice Realignment Act of
2011 (hereafter Realignment Act) (Stats. 2011, 1st Ex.
Sess. 2011–2012, ch. 12, § 1; § 1170, subd. (h)), which “[r]ealign[ed]
low-level felony offenders who do not have prior convictions for serious,
violent, or sex offenses to locally run community-based corrections programsâ€
(§ 17.5, subd. (a)(5)), required the trial court to order defendant’s sentence
to be served in county jail after it dismissed his strike prior pursuant to
section 1385.
name="_ftnref3" title="">[3] We conclude that a trial
court sentencing a defendant under the Realignment Act
in fact has no discretion to allow a defendant with a prior strike conviction
to serve his sentence in county jail, even when the trial court has dismissed
the strike under section 1385. This is
because, under People v. Lara (2012)
54 Cal.4th 896 (Lara), which resolved
a similar issue, a trial court is empowered under section 1385 to strike only
the individual charges and allegations in a criminal action, not the historical
fact of prior strike convictions.
As amended by the Realignment Act, the pertinent portion of section
1170, subdivision (h), now provides as follows:
“(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a county
jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant (A)
has a prior . . . felony conviction for a serious felony described in
subdivision (c) of Section 1192.7 or a prior . . . conviction for a violent felony
described in subdivision (c) of Section 667.5, . . . an executed sentence for a
felony punishable pursuant to this subdivision shall be served in state
prison.â€
Defendant argues the trial court retained discretion to determine
whether the strike prior should be taken into account or disregarded in the
exercise of its sentencing options.
However, defendant also acknowledged that the California Supreme Court
had before it, in Lara, the similar
issue of whether the trial court retains discretion, after dismissing a prior
strike conviction under section 1385, to ignore the prior strike conviction to
make the defendant eligible for additional presentence credits under section
4019. Section 1170, subdivision (h), like
section 4019 in Lara, provides that any
defendant with one or more prior strike convictions is ineligible to benefit
from its provisions.
On July
19, 2012, the California Supreme Court
issued its opinion in Lara, which we
find to be extremely persuasive in the present case. The Court held that, with regard to increased
presentence custody credits made available to defendants without prior strike
convictions under section 4019, a trial court’s dismissal of a prior strike
under section 1385 “reaches only the ‘individual charges and allegations in a
criminal action.’ [Citation].†(Lara,
supra, 54 Cal.4th at p. 901.) “The
historical facts that limit a defendant’s ability to earn conduct credits do
not form part of the charges and allegations in a criminal action.†(Ibid.) For similar reasons, these same historical
facts—a prior strike conviction—that limit a defendant’s eligibility to serve
his or her sentence in county jail also do not form part of the charges and
allegations in a criminal action. Thus,
under the Realignment Act, a trial court may not ignore the fact of a prior
strike conviction, though dismissed under section 1385, when determining
whether a defendant is eligible to serve his sentence in county jail under
section 1170, subdivision (h), for the same reason the court may not ignore
this fact for purposes of awarding custody credits under section 4019, as set
forth in Lara.
Disposition
The judgment of conviction and the sentence imposed are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
McKINSTER
J.
MILLER
J.
name="_ftn1" title=""> [1] All section references are
to the Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] People v. Cruz (1988) 44 Cal.3d 1247.
