Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. FNE003807 Joseph R. Brisco, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
I
INTRODUCTION
Defendant Janet Collier pled guilty to first degree burglary. After her probation was revoked, the trial court sentenced her to four years in state prison. Thereafter, upon a request from the Department of Corrections and Rehabilitation for clarification, the trial court ordered that the special allegation, where another person was present in the residence during the burglary, was found to be true. On appeal, defendant contends that the trial court violated her due process and Sixth Amendment rights, and the terms of her plea agreement. For the reasons set forth below, we shall affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On August 7, 2003, defendant walked into the victim’s home located in San Bernardino County. Although defendant had not been invited into the home, she proceeded directly to the bedroom. Defendant tore the door off its wooden frame, took a shotgun from the bedroom, and walked out of the home, carrying the shotgun wrapped in a towel.
On September 22, 2003, the San Bernardino County District Attorney filed a felony complaint charging defendant with first degree burglary of an inhabited dwelling under Penal Code section 459 (count 1). The complaint also alleged that the burglary was a violent felony within the meaning of section 667.5, subdivision (c), because another person, other than an accomplice, was present in the residence during the burglary. Finally, the complaint alleged that the burglary was in violation of section 462, subdivision (a). “Except in unusual cases where the interests of justice would best be served . . . probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house.” (§ 462, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated.
On October 7, 2003, defendant pled guilty to first degree burglary and the trial court sentenced her to state prison for the low term of two years, but suspended the sentence pending defendant’s successful completion of the “In Roads” drug court program.
On July 27, 2004, defendant admitted she violated probation by failing to complete the “In Roads” drug court program and agreed to amend the plea agreement to a four-year sentence. In exchange, the People agreed to dismiss a new case, which had been filed. On August 24, 2004, the trial court revoked defendant’s probation and sentenced her to state prison for the midterm of four years for the burglary conviction.
On December 6, 2006, the Department of Corrections and Rehabilitation sent a letter to the trial court requesting clarification of the abstract of judgment and the minute order from the sentencing hearing because it was unclear whether the trial court found true the special allegation that another person, other than an accomplice, was present in the residence when the burglary occurred.
On February 27, 2007, the trial court held a hearing to modify the abstract of judgment and minute order. The trial court ordered that the special allegation was found to be true and ordered defendant to serve 85 percent of her time.
Defendant appeals.
III
ANALYSIS
Defendant contends that the trial court violated her due process and Sixth Amendment rights, and the terms of her plea agreement, in making a finding that the burglary was a violent felony within the meaning of section 667.5, subdivision (c), without her consent. Defendant also claims that she negotiated a plea agreement that preserved her entitlement to full presentence credits under section 4019.
A. Background
As discussed above, on September 22, 2003, a complaint was filed; it charged defendant with first degree burglary of an inhabited dwelling. The complaint alleged that the burglary was a violent felony within the meaning of section 667.5, subdivision (c), because another person, other than an accomplice, was present in the residence during the burglary. Section 667.5, subdivision (c), defines “violent felony” as “Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein 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).)
On October 7, 2003, defendant pled guilty to first degree burglary. The trial court sentenced defendant to state prison for the low term of two years, but suspended the sentence pending defendant’s successful completion of the “In Roads” drug court program.
On July 27, 2004, defendant admitted that she violated her probation, “in that she did not successfully complete the [d]rug [c]ourt [p]rogram as set forth in the [initial] plea agreement.” Defendant agreed “to amend the plea agreement to one being a four years rather than the two years as agreed upon in the plea agreement.” The trial court noted that, in exchange, the prosecutor agreed to dismiss a newly filed case against defendant, which included two strike allegations.
On August 24, 2004, at the sentencing hearing, the trial court revoked defendant’s probation and sentenced her to the midterm of four years for the burglary conviction.
On February 27, 2007, the trial court explained that it had received a notice from the Department of Corrections and Rehabilitation requesting clarification “as to what was our intent when we filed the plea agreement” because if a person was present during defendant’s burglary, defendant was required to serve 85 percent of her prison time.
In response, the prosecution explained, “The People’s intent was that it was person present. Under [count 1], it indicates that [defendant], who did enter an inhabited dwelling house and trailer coach, an inhabited portion of the building, occupied by [the victim], with the intent to commit a larceny. Further, under [c]ount 1, it does indicate that pursuant to [section] 667.5[, subdivision (c)], another person was present in the residence other than an accomplice. [¶] When I look at the plea agreement, I see that she pled to [c]ount 1. That’s the way [c]ount 1 reads. She pled to [c]ount 1. [¶] . . . [¶] But she also circled and initialed that she . . . understood she was going to receive reduced earning of custody credits. Those reduced earnings of custody credits is the fact that she’s getting 85 percent time because she pled to [c]ount 1 with person present. [¶] She knew and understood that at the time that she made that arrangement, and that was the People’s understanding at the time that the plea bargain was made is that a person was in fact present.”
The prosecutor also noted that at the time of the sentencing, the trial court issued a “stay away order,” restricting defendant from the victim. The prosecutor explained that this order was issued because “[The victim] was present in the house at the time [defendant] committed the burglary.” The prosecutor argued that, “by all indications, it was the People’s intent, we can see that it was [defendant’s] understanding as well, that a person was present; and so the [c]ourt should order it pursuant to [section] 667.5 with the 85 percent.”
Defense counsel argued that under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], “the [c]ourt has to . . . get . . . a specific acknowledgment . . . from the defendant as to any enhancements that would put her beyond either the midterm or to deal with . . . these custody credit issues.” Defense counsel further argued that “on August 24th when . . . [defendant] was sentenced to the four-year state prison . . . we calculated the custody credits at a hundred and seventy-five actual, plus 86 [section ] 4019 credits, which were then calculated at the two-thirds time as opposed to the 85 percent time. [¶] Therefore, . . . [defendant] is entitled to get the [section] 4019 credits and do 50 percent time.”
Thereafter, the trial court stated, “I remember this case very well. This is one of those cases in which the defendant pled to a case that normally would not be considered for drug [c]ourt. [¶] However, the [c]ourt was aware that there was a drug component, so I allowed [defendant] to enter [d]rug [c]ourt over the People’s objection with the understanding that we would load up as much time as possible on her for failure . . . . [¶] It was our intent that if she did not successfully complete [d]rug [c]ourt, she would get as much time as we could give her and do the time at the full level of 85 percent. [¶] So that’s going to be the order of the [c]ourt. It was the [c]ourt’s intent to give her everything she got at 85 percent, and that’s what it will be.”
B. The Trial Court Did Not Violate Defendant’s Due Process Rights or the Terms of Defendant’s Plea Agreement
Defendant contends that the trial court violated her due process rights and the terms of her plea agreement by making a finding, without her consent, that someone was present in the residence when she committed the burglary. We disagree with defendant’s contentions.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.) On the other hand, “[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.]’ [Citations.]” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
First degree burglary is a violent felony within the meaning of section 667.5, subdivision (c)(21), “‘wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.’” (People v. Garcia (2004) 121 Cal. App.4th 271, 274 (Garcia).) Under section 2933.1, subdivision (c), a defendant who is convicted of a violent felony, as defined in section 667.5, subdivision (c), “may not accrue presentence conduct credits greater than 15 percent of his or [her] actual period of confinement.” (Garcia, at p. 274.) The limitation on presentence credits under section 2933.1, subdivision (c), “is not a sentencing enhancement and does not operate to increase the maximum six-year penalty prescribed for first degree burglary. (§ 461, subd. 1.) Rather, the provisions for presentence conduct credits function as a sentence ‘reduction’ mechanism.” (Garcia, at p. 277.) “Lessening the ‘discount’ for good conduct credit does not increase the penalty beyond the prescribed maximum punishment and therefore does not trigger the right to a jury trial.” (Ibid.)
Moreover, the “‘charged and proved’ terminology of section 667.5, subdivision (c)(21) itself does not mandate a jury determination of the issue of a non accomplice's presence at the time of the offense.” (Garcia, supra, 121 Cal.App.4th at p. 278.) “As with other sentencing facts, however, proof that a first degree burglary falls within section 667.5, subdivision (c)(21), is properly presented to the sentencing court.” (Id. at p. 279.) Thus, when the issue is eligibility for presentence conduct credits, the question of whether a conviction for first degree burglary is a violent felony within the meaning of section 667.5, subdivision (c)(21), may be tried in the sentencing court. (Garcia, at pp. 279-280.)
In this case, the trial court did not violate defendant’s due process rights or the plea agreement in finding that her first degree burglary had been designated as a violent felony under section 667.5, subdivision (c). The record shows that the trial court properly determined that the burglary was a violent felony after it found that, at the time defendant pled guilty to burglary on October 7, 2003, the parties included the fact that the victim was present in the residence when defendant committed the burglary.
First, in order to allege first degree burglary, it is necessary to allege only the burglary of an inhabited dwelling house. (§ 460, subd. (a).) The complaint in this case, however, included additional language that clearly indicated that the victim was occupying the house during the burglary. The complaint charged that defendant burglarized “an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by [the victim].” (Italics added.)
Second, the complaint expressly designated the burglary as “a violent felony within the meaning of Penal Code section 667.5[, subdivision] (c), in that another person, other than an accomplice, was present in the residence during the commission of the above offense.” Thus, defendant was aware that she was pleading guilty to burglary with the allegation that another person was present in the residence at the time she committed the burglary.
Third, the parties stipulated that the “investigative report in this case” would become part of the record and used it to form the factual basis of the plea. The probation report, which was prepared from the police reports in this case, described the burglary as follows: “The victim . . . disclosed that [defendant] . . . walked into her residence uninvited. She proceeded to the bedroom, where [defendant] had observed the victim store a shotgun one week earlier. The victim could hear [defendant] tearing the lock off the door. [The victim] yelled at [defendant] to find out what she was doing, but no reply was forthcoming. The victim then observed [defendant] walking out of her apartment with the shotgun wrapped in a towel.”
Fourth, the trial court explained that it remembered this case and noted that although this was not a case in which drug court would usually be permitted, it “allowed [defendant] to enter [d]rug [c]ourt over the People’s objection with the understanding that we would load up as much time as possible on her for failure.” The trial court explained, “It was our intent that if she did not successfully complete [d]rug [c]ourt, she would get as much time as we could give her and do the time at the full level of 85 percent. [¶] . . . It was the [c]ourt’s intent to give her everything she got at 85 percent, and that’s what it will be.
Finally, the prosecutor noted that the trial court issued a “stay away order,” restricting defendant from the victim. The prosecutor explained, “it’s because [the victim] was present in the house at the time [defendant] committed the burglary.”
Nevertheless, defendant contends that, because the trial court awarded her presentence custody credits under section 4019, and a defendant convicted of a violent felony and sent to state prison is not entitled to presentence credits under that section, “it is clear that the plea agreement included only an admission to the offense of residential burglary, and not the special allegation which classified the offense as a violent felony.” Defendant’s contention is without merit.
The language of section 4019 provides, in relevant part, that for each six-day period in which a prisoner is confined or committed, one day shall be deducted from a term of imprisonment for good conduct. (§ 4019, subds. (b), (c), (f).)
In this case, when defendant originally pled guilty on October 7, 2003, her plea agreement mentioned that she “will earn [section] 4019 credits for time served in ‘In Roads.’” (Italics added.) This agreement applied while defendant was participating in the drug court program and not after she violated her probation by failing to complete the drug program.
Here, imposition of defendant’s sentence was suspended and defendant was granted supervised probation at the initial sentencing hearing on October 7, 2003. At that time, defendant was properly awarded six-for-four credits under section 4019. Thereafter, however, defendant violated probation and was placed in the custody of the Department of Corrections and Rehabilitation. “[W]hen there is a violation of probation and the defendant is committed to state prison, the defendant is entitled only to credits computed according to the 15 percent limitation set forth in section 2933.1[, subdivision] (c).” (People v. Daniels (2003) 106 Cal.App.4th 736, 740.)
Therefore, the trial court’s order, which awarded section 4019 credits for time served in the “In Roads” drug program, did not afford defendant section 4019 credits for time served after she was sentenced to prison. Hence, the trial court’s order awarding section 4019 credits prior to defendant’s prison sentence does not support defendant’s contention.
In conclusion, we find that the circumstances above demonstrate that the parties intended for defendant’s guilty plea to include the fact that someone was present in the residence when defendant committed the burglary. Accordingly, the trial court did not violate defendant’s due process rights or the terms of the plea agreement when it determined that defendant’s first degree burglary was a violent felony under section 667.5, subdivision (c).
C. The Trial Court Did Not Violate Defendant’s Sixth Amendment Rights
Citing Apprendi v. New Jersey (2000) 530 U.S. 466 and Cunningham v. California, supra, 127 S.Ct. 856, defendant contends that the trial court violated her Sixth Amendment right to a jury trial by making a factual finding to enhance her sentence. We disagree.
As discussed above, in Garcia, supra, 121 Cal.App.4th at page 276, the defendants argued that they were entitled under Apprendi to a jury determination of whether their burglary was a violent felony. The Garcia court rejected this argument and stated, “[S]ection 2933.1, subdivision (c)’s limitation on presentence conduct credits is not a sentencing enhancement and does not operate to increase the maximum six-year penalty prescribed for first degree burglary.” (Garcia,at p. 277.) The court explained, “[T]he provisions for presentence conduct credits function as a sentence ‘reduction’ mechanism outside the ambit of Apprendi. . . . Lessening the ‘discount’ for good conduct credit does not increase the penalty beyond the prescribed maximum punishment and therefore does not trigger the right to a jury trial identified in Apprendi.” (Ibid.; see also Harris v. United States (2002) 536 U.S. 545, 565 [factors determining increased minimum penalty, if there is no increase beyond the statutory maximum penalty, may properly be decided by a judge rather than by a jury].)
Under Garcia, supra, 121 Cal.App.4th at pages 279-280, defendant had no constitutional or statutory right to a jury determination of the facts relating to her presentence conduct credits. Cunningham v. California, supra, 127 S.Ct. 856, does not affect this analysis. In this case, defendant received the midterm, not the upper term, for her burglary conviction. (§§ 459, 461.) Imposition of the midterm sentence raises no issues under Cunningham.
Therefore, the trial court did not violate defendant’s Sixth Amendment rights.
IV
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J. MILLER, J.