People v. Whittington CA3

Filed 1/28/22 P. v. Whittington CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

THE PEOPLE,

Plaintiff and Respondent, C092449

v. (Super. Ct. No. 14F06801)

JOSEPH WHITTINGTON,

Defendant and Appellant.

Defendant Joseph Paul Whittington pleaded no contest in 2015 to one count of first degree residential burglary and admitted a prior strike conviction. A little over a month later, the trial court sentenced him to 13 years in prison (including a five-year enhancement) and awarded presentence credit. Defendant did not appeal the judgment. In 2019, defendant filed a petition for resentencing based on Senate Bill No. 1393 (2017-2018 Reg. Sess.), which gave the trial court new discretion to dismiss the five-year enhancement. The trial court also asked the parties to address whether defendant’s conduct credit had been appropriately limited under Penal Code section 2933.1. 1 After a

1 Undesignated statutory references are to the Penal Code.

1

hearing, the trial court denied defendant’s motion for resentencing and determined the presentence credit was appropriate. Defendant now contends the trial court erred in limiting his conduct credit because the evidence is insufficient to support a conviction for a violent felony. Because the appellate record shows sufficient support for the presentence credit award, we will affirm the trial court’s order. BACKGROUND The People charged defendant with the first degree residential burglary of an inhabited residence, specifically alleging that a nonaccomplice had been present in the residence during the commission of the burglary. (§§ 459, 462, subd. (a), 667.5, subd. (c)(21).) The People further alleged defendant had a prior strike conviction. (§§ 667, subd. (a), 667, subds (b)-(i), 1170.12.) The parties negotiated an open plea agreement under which defendant pleaded no contest to the above charges and allegations. During the plea hearing, the trial court said first degree burglary was a serious felony, but the prosecutor noted that the allegation under section 667.5, subdivision (c)(21) rendered the offense a violent felony because the home was occupied at the time of the offense. The trial court acknowledged the correction and stated, “What that means is it’s considered a violent felony in addition to a serious felony. It’s still a strike under the three strikes law, but a violent felony changes the amount of credits you would receive. [¶] For a strike you have to serve 80 percent of your time. For a violent felony you have to serve 85 percent of your time. That’s the main difference between the two.” Defendant indicated he understood. As part of the factual basis for the plea, the prosecutor stated, “it’s also alleged that due to the fact that the victims were present in the residence at the time of this crime that it is also a violation of Section 667.5(c)(21) of the Penal Code.” Defense counsel stated he had nothing to add to the factual basis. When asked by the trial court, defendant accepted the factual basis as stated. Defendant then