(Super. Ct. No. CM033738)
The opinion of the court was delivered by: Duarte , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Albert Glen Hammons entered negotiated pleas of guilty to felony possession of methamphetamine and misdemeanor resisting a peace officer in exchange for a stipulated three-year prison term and the dismissal of an allegation of a prior prison term. Defendant also entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).
In March 2011, the trial court sentenced defendant to the stipulated term. It awarded 34 days of conduct credit for defendant's 69 days of presentence custody, based on defendant's unspecified prior "serious or violent felony conviction."
Defendant contends the trial court erred in restricting his conduct credit on the basis of a prior felony conviction that the prosecutor did not plead or prove. As we explain post, we agree that the restriction of conduct credit was error. We shall modify the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On February 23, 2011, defendant entered his pleas in exchange for a stipulated prison term and the dismissal of an allegation of a prior prison term for a 2005 conviction for an unspecified violation of Penal Code*fn1 section 245, subdivision (a)(1). The prosecutor apparently had also "agreed not to file a prior strike" even though defendant acknowledged that he had "[a] couple more strikes" without identifying the nature of the convictions that he believed were "strikes." Defendant also waived preparation of a full probation report.
As part of his plea, defendant initialed a provision in the plea form that indicated he agreed to the consideration of facts underlying dismissed counts for purposes of sentencing, commonly known as a Harvey waiver. The boilerplate waiver also assented to the consideration of "his prior criminal history and . . . any unfiled [or] dismissed . . . allegations . . . when . . . imposing sentence." (See In re Knight (1982) 130 Cal.App.3d 602, 605.)
In March 2011, the trial court sentenced defendant to a three-year term in prison and six months concurrent on the misdemeanor charge, in accordance with the terms of the plea agreement. However, over the objection of defendant (based apparently on our decision in People v. Jones (2010) 188 Cal.App.4th 165, 183, review granted Dec. 15, 2010, S187135 [Jones]), it awarded only 34 days of conduct credit for his 69 days of presentence custody, stating defendant had an unspecified prior conviction for a "serious" or violent felony.*fn2
Defendant's notice of appeal did not seek a certificate of probable cause (CPC).
Defendant's argument, essentially involving a question of law, does not implicate the facts underlying his convictions or any additional procedural facts. We accordingly omit further recitation of ...