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The People v. Sean Michael Blackwell

January 26, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SEAN MICHAEL BLACKWELL, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 10F04519 & 05F07036)

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

P. v. Blackwell 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Sean Blackwell was placed on probation in 2005 after entering a plea to one count of second degree robbery, a violent offense pursuant to Penal Code section 667.5, subdivision (c)(9).*fn1 Defendant's probation was revoked in 2010, when he was arrested and pleaded guilty to possession of cocaine base for sale. Defendant served two different periods of confinement in county jail following arrest and prior to placement in the custody of the Department of Corrections and Rehabilitation. The first period was attributable to the robbery, and the second period was following his arrest on the drug related charges.

When defendant was sentenced to concurrent terms for both offenses in 2010, the trial court limited his accrual of conduct or worktime credits for both periods of presentence confinement to 15 percent, pursuant to section 2933.1, subdivision (c). That section limits the credits that may be awarded for "any person who is convicted of a [violent] felony offense[.]"

Defendant argues his presentence conduct credits for his period of confinement following his arrest on drug charges should not have been limited to 15 percent because the possession for sale charge to which he pled guilty was not a violent offense.

We shall conclude that the trial court properly limited defendant's credits because defendant was a person described by section 2933.1 when his sentence was imposed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant entered a plea of nolo contendere to one charge of second degree robbery in 2005. The trial court imposed a three year prison term and suspended execution of the sentence for a period of five years during which defendant was placed on formal probation. The trial court ordered defendant to serve 360 days in county jail.

In April 2010, defendant's grant of probation was revoked due to a misdemeanor conviction. Shortly thereafter the court reinstated probation and extended it an additional two years.

Defendant was arrested on July 9, 2010, and charged with violating Health & Safety Code sections 11351.5, 11352 and 11379.6, subdivision (a), based upon defendant's possession of 13.34 grams of cocaine on his person and the discovery of various paraphernalia indicating that such possession was for sale. On July 13, 2010, probation was again revoked and defendant was remanded to custody without bail.

Defendant entered a plea of guilty to possession of cocaine base for sale and admitted his prior robbery strike. (Health & Saf. Code, § 11351.5.) The trial court sentenced defendant to six years in prison on the possession charge, and to a concurrent three year term in the earlier robbery case.

Pursuant to section 2933.1, which provides that the maximum credit that a defendant may earn shall not exceed 15 percent of the actual period of confinement for any person who is convicted of a specified violent felony offense, the trial court imposed a 15 percent limit on the number of conduct or worktime credits it awarded defendant for the time defendant was in jail as a result of the robbery case, as well as the time he spent in jail after being arrested in the drug possession case and prior to sentencing. Defendant's conviction ...


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