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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Raul Ruby Rositas agreed to enter a negotiated plea of no contest to active participation in a criminal street gang. He also admitted a prior felony conviction in 2000; the parties agreed the trial court could determine whether this was for a "serious" felony (thereby doubling the lower-term sentence to which the parties stipulated). (Pen. Code, § 667, subds. (d) & (e) [undesignated section references are to this code].)
The parties submitted written memoranda on the issue. The trial court issued a lengthy order, in which it ruled that the record of conviction showed the prior conviction was for a serious felony. The trial court imposed the enhanced negotiated sentence. It agreed to issue a certificate of probable cause to allow defendant to renew the issue on appeal.
For reasons not specified, the court limited defendant's conduct credits to 15 percent of his custody credits, contrary to the recommendation in the probation report of two days for every four-day period of custody. (§ 4019, former subds. (b)(2), (c)(2) & (f) [Stats. 2009, 3d Ex. Sess., ch. 28, § 50]; see § 2933, subd. (e)(2).) The abstract of judgment indicates this was pursuant to section 2933.1, which limits conduct credits for defendants convicted of violent felonies within the meaning of section 667.5, subdivision (c).
Defendant now pursues the issue on appeal. We shall affirm the judgment as modified.
The factual basis for the gang offense is not pertinent to the issue on appeal. We therefore omit it beyond noting that it involved a fight between gangs in the county jail.
Defendant admitted an allegation that he had a conviction in San Joaquin County in 2000 for committing a battery that resulted in serious bodily injury. The issue submitted to the trial court was whether defendant was convicted of a felony in which he "personally inflict[ed] great bodily injury on any person other than an accomplice" (§ 1192.7, subd. (c)(8)), which would make it a serious felony subjecting him to recidivist treatment under section 667, subdivisions (d) and (e).
The parties submitted a copy of the transcripts of the hearings in the San Joaquin County proceedings at which defendant had entered his negotiated plea of no contest, and a transcript of the San Joaquin County preliminary hearing that was the stipulated basis for the plea. (As these were part of the proceedings leading to the conviction, it was proper for the trial court to consider them in determining the issue of whether it was a serious felony. (People v. Trujillo (2006) 40 Cal.4th 165, 177, 180 (Trujillo); People v. Woodell (1998) 17 Cal.4th 448, 454-456 (Woodell).))
At the preliminary hearing, a prison guard at Deuel Vocational Institute testified that he had observed defendant and another inmate striking the victim, who was crouched down and backed into a corner against the fence trying to cover himself up. Disregarding several verbal orders to stop, the two continued to beat the victim until the guard fired a round of rubber "BB" shot at them and they disbursed. The victim lay against the fence in a crouched position, unable to get up. A guard who responded to the yard found that the victim's face was covered with blood, and he could not walk on his own. When the victim was treated later in the prison infirmary, there was swelling below his eye and cuts on his face. A doctor told the guard the wounds required 18 stitches, and some of them would ...