The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a bargain, defendant Jamaal Anthony Johnson pleaded no contest to one count of unlawful intercourse with a minor more than three years younger than himself (Pen. Code, § 261.5, subd. (c)),*fn1 in exchange for a stipulated three-year prison sentence and the dismissal of two similar counts, a strike allegation, and a misdemeanor case. The trial court sentenced defendant to prison for three years, and defendant timely filed this appeal.
On appeal, defendant contends he is entitled to additional presentence conduct credits, because the strike was not pleaded and proven. We agree, accordingly, we modify the judgment to award defendant additional credits, and otherwise affirm.
The information alleged three counts of unlawful sexual intercourse with a person three years younger than defendant, and alleged a prior strike, a 2000 carjacking conviction under section 215.
Defendant pleaded no contest to one count in exchange for a three-year sentence and dismissal of the other counts, the strike, and a trailing misdemeanor case. The factual basis, taken from the preliminary hearing transcript, shows that in June 2008, defendant had intercourse with a 16-year-old girl in a motel room.
The probation report showed that defendant's criminal history included a 2000 carjacking conviction, a strike. It recommended that defendant receive conduct credits at the normal rate, as if defendant did not have a strike. However, at sentencing the probation officer stated the report was in error and "[o]ur position is that the prior serious or violent felony does not have to be proven." Defense counsel did not contest the fact that defendant had a prior strike, but argued that because it had not been pleaded and proven, it should not be used to calculate his conduct credits. The trial court continued the hearing to allow the parties to brief the issue.
At the continued sentencing hearing held on August 12, 2010, the trial court adopted the view that dismissal of the strike did not render it invalid for purposes of limiting defendant's conduct credit award. The trial court awarded defendant 255 days of actual custody credits for the period from December 1, 2009, to August 12, 2010. The trial court awarded 126 days of conduct credits, rather than the more generous amount of credits that would have been available but for defendant's strike.
Defendant timely filed ...