Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed as modified. (Super. Ct. No. 08HF0799).
The opinion of the court was delivered by: Bedsworth, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Danny Lee Skiles was convicted of burglary and receiving stolen property. He had previously been convicted of manslaughter in Alabama, and based on that conviction, the trial court found true the allegation Skiles had suffered a serious felony for purposes of the "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)- (i); 1170.12, subds. (a)-(d).)*fn2 Skiles contends there is insufficient evidence to support the court's finding in this regard, and he was denied his constitutional right to a jury trial on that allegation. He also claims the court erred in failing to stay his sentence for receiving stolen property and by limiting his presentence custody credits. As the Attorney General concedes, Skiles' sentencing claims are valid, and therefore we will modify the judgment to stay the receiving count and award him proper presentence credit. In all other respects, we affirm.
Saida Hudson returned to her Costa Mesa motel room one night to find it had been burglarized. Skiles had been seen in the area around the time of the burglary, and his fingerprints were found on one of Hudson's window panes. Upon his arrest, he was found with several items that were taken in the burglary.
The jury convicted Skiles of residential burglary and receiving stolen property, i.e., the items taken in the burglary. Then, upon finding that Skiles' Alabama manslaughter conviction constituted a serious felony under California law, the court sentenced him as a second strike offender to concurrent four-year terms for his crimes. Based on the Alabama prior, the court also added a five-year enhancement pursuant to section 667, subdivision (a)(1), bringing Skiles' combined term of imprisonment to nine years.
Although a defendant can be convicted of both burglary and receiving stolen property taken during the burglary, he cannot be punished for both offenses. (§ 654, subd. (a); People v. Allen (1999) 21 Cal.4th 846, 865-867.) Accordingly, as the Attorney General concedes, the trial court should have stayed Skiles' sentence for receiving stolen property. (Ibid.) We will modify the judgment to correct this error.
The Attorney General also admits the trial court erred in limiting Skiles' presentence custody credits under section 2933.1. That section imposes a 15 percent limitation on conduct credit awarded to defendants who are convicted of certain violent felonies, such as burglary of an inhabited dwelling. (§§ 2933.1, subd. (a); 667.5, subd. (c)(21).) However, no one was home when Skiles burglarized Hudson's motel room, and there is no other basis for a credit limitation in his case. Therefore, we will modify the judgment to award Skiles proper conduct credit for the time he served in jail prior to sentencing.
The remaining issues relate to the trial court's true finding on the prior serious felony allegation. Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny, Skiles contends he was entitled to have a jury decide whether his Alabama conviction constituted a serious felony for purposes of the Three Strikes law. However, while Apprendi dictates generally that defendants be afforded jury trials on facts that lead to a sentencing increase beyond the prescribed statutory maximum, it does not apply to factual determinations relating to prior convictions. (Id. at p. 490; People v. McGee (2006) 38 Cal.4th 682, 709.) As our Supreme Court explained in McGee, this exception to the right to jury "is not limited simply to the bare fact of a defendant's prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a `violent' felony) that renders the defendant subject to an enhanced sentence." (People v. McGee, supra, 38 Cal.4th at p. 704; see also People v. Black (2007) 41 Cal.4th 799, 819 [reaffirming McGee on this point].) Therefore, Skiles was not entitled to have a jury decide whether his Alabama conviction constituted a serious felony for purposes of the Three Strikes law. No Sixth Amendment violation has been shown.
Skiles also contends the offense for which he was convicted in Alabama, i.e., manslaughter, does not qualify as a serious felony.*fn3 The list of felonies that qualify as "serious" for purposes of the Three Strikes law is set forth in section 1192.7, subdivision (c). (See § 667, subd. (d)(2).) That list includes voluntary manslaughter, but it does not include involuntary manslaughter. (§ 1192.7, subd. (c)(1).) This is important because, as more fully explained below, Skiles' Alabama manslaughter conviction arose from his reckless operation of a motor vehicle and is thus akin to the involuntary form of that offense. However, for purposes of section 1192.7, subdivision (c), a serious felony also includes "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice . . . ." (§ 1192.7, subd. (c)(8).)
None of this was lost on the trial court. In fact, it expressed a keen awareness of this statutory framework. And ultimately, it determined Skiles' manslaughter conviction constituted a serious felony because, during its commission, Skiles personally inflicted great bodily injury on a person other ...