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The People v. Dale King

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


May 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DALE KING, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F03259)

The opinion of the court was delivered by: Hoch , J.

P. v. King 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Dale King appeals a judgment following his conviction of first degree burglary with findings of a prior serious felony conviction. (Pen. Code, §§ 459, subd. (a), 667, subds. (b)-(i) & 1170.12.)*fn1

The complaint did not allege, and defendant did not admit when he pled no contest, that anyone other than an accomplice was present in the residence when the burglary was committed. At sentencing, the trial court awarded him presentence credits of 94 days served, plus local conduct credits of 14 days, pursuant to section 2933.1.

On appeal, defendant contends the trial court erred by limiting his precustody conduct credits pursuant to section 2933.1, subdivision (a). He points out that burglary of an unoccupied residence is not subject to the presentence conduct credit limitation. (§ 667.5, subd. (c)(21); People v. Thomas (1999) 21 Cal.4th 1122, 1125, 1129.) The People concede the error.

We agree. Local conduct credits are limited to 15 percent of time served under section 2933.1 only for defendants convicted of a "violent felony," as defined by section 667.5, subdivision (c). (§ 2933.1; People v. Thomas, supra, 21 Cal.4th at p. 1127.) Burglary is not a violent felony listed in section 667.5, subdivision (c), except "wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21).)

The parties agree that defendant's local conduct credits should have been calculated at 50 percent of time served pursuant to section 4019. For 94 actual days served in county jail, defendant should have received 46 days of local conduct credit.*fn2 We order the abstract of judgment so amended.

DISPOSITION

The clerk of the superior court is ordered to amend the abstract of judgment to reflect 46 days of local conduct credits and provide a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

We concur: HULL , Acting P. J. BUTZ , J.


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