People v. Howlan CA1/4

Filed 2/21/14 P. v. Howlan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A137953 v. RICHARD HOWLAN, (San Francisco County Super. Ct. No. 209611) Defendant and Appellant.

Defendant Richard Howlan was placed on probation after pleading guilty to felony second degree burglary and felony grand theft.1 Several years later, the People alleged that Howlan violated his probation, and they moved to revoke it. Before admitting the violation, Howlan asked to be sentenced to county jail, rather than state prison, under the Criminal Justice Realignment Act of 2011 (Realignment Act or Act).2 (§ 1170, subd. (h).) The trial court determined that Howlan was precluded from being sentenced to jail because he had a prior conviction for felony robbery in the State of Washington that qualified as a strike under California law. Howlan admitted the probation violation anyway, apparently in exchange for being sentenced to the midterm for his crimes. Without relying on the strike determination to increase the sentence’s length, the trial

1 The burglary charge was under Penal Code section 459, and the grand theft charge was under Penal Code section 487, subdivision (a). All statutory references are to the Penal Code unless otherwise indicated. 2 Amended by Statutes 2011, First Executive Session 2011-2012, chapter 12, section 1.

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court sentenced him to two years in state prison. It then released Howlan on parole because he had over two years of custody credits. (See § 1170, subd. (a)(3).) On appeal, Howlan argues, and the Attorney General concedes, that the case is subject to remand because the trial court had insufficient evidence to find that the Washington robbery conviction qualified as a strike. But we affirm because, as we explain below, Howlan has not identified any prejudice requiring a remand. I. FACTUAL AND PROCEDURAL BACKGROUND In 2009, Howlan pleaded guilty to one felony count of second degree burglary and one felony count of grand theft. The trial court suspended imposition of Howlan’s sentence and granted probation. In August 2012, the People moved to revoke Howlan’s probation. Howlan requested sentencing under the Realignment Act, which allows eligible felons to “serve their terms of imprisonment in local custody rather than state prison.” (People v. Cruz (2012) 207 Cal.App.4th 664, 671; § 1170, subd. (h).) The People argued that Howlan was ineligible to be locally sentenced under section 1170, subdivision (h) (section 1170(h)) because it excludes defendants who have an out-of-state conviction that would qualify as a strike under California law. (§ 1170, subd. (h)(3)(B).) They argued that Howlan’s prior felony conviction in Washington for second degree robbery was such a qualifying offense.3 The People did not, however, attempt to rely on the prior conviction