People v. Anderson CA3

Filed 1/15/14 P. v. Anderson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C070666

Plaintiff and Respondent, (Super. Ct. No. NCR82532)

v.

BRIAN MICHAEL ANDERSON,

Defendant and Appellant.

Defendant Brian Michael Anderson contends the trial court erred when, as part of his plea bargain, it sentenced him to custody in the state prison instead of the county jail under the realignment law. We conclude defendant forfeited and waived this contention by failing to object in the trial court and by expressly agreeing to the terms of the plea bargain. Except to order correction of a criminal conviction assessment, we affirm the judgment.

1

FACTS The prosecutor charged defendant with vehicle theft, a felony, and driving without a license, a misdemeanor. (Veh. Code, §§ 10851, subd. (a), 12500, subd. (a).) Defendant initially pleaded guilty to the theft count in exchange for probation and dismissal of the misdemeanor. A probation report disclosed defendant had previously been convicted in Washington of three counts of “[r]esidential burglary, a felony,” and one count of “[f]irst degree burglary, a felony.” After reviewing the report and addressing the prior convictions with defendant, the court ordered the probation department to prepare a supplemental report addressing sentencing pursuant to Penal Code section 1170, subdivision (h), the realignment legislation. In its supplemental report, the probation department recommended defendant be sentenced to a state prison term. It did so because under realignment, a defendant is not eligible to serve a felony sentence in a county jail if he has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony or violent felony under California law. (Pen. Code, § 1170, subd. (h)(3).) After receiving this report, defendant moved to withdraw his plea. The prosecutor did not contest the motion. However, he stated the Washington felonies, based on his preliminary research, would not constitute strikes in California. The court granted defendant’s motion, and shortly thereafter defendant pleaded not guilty. Three weeks later, defendant again pleaded guilty to the vehicle theft charge, this time in exchange for a 16-month sentence to be served in the county jail under realignment, and a dismissal of the other charge. The probation department, however, again recommended the court sentence defendant to state prison under the realignment law due to his prior felony convictions. Prior to sentencing, the prosecution submitted a court reporter’s transcript from one of defendant’s Washington priors. It was from a 2002 Washington court hearing wherein defendant pleaded guilty to one count of “residential burglary.” In the written