(Super. Ct. No. CM033328)
The opinion of the court was delivered by: Murray , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Dedra Lynn O'Bryant pled no contest to second degree commercial burglary (Pen. Code, § 459)*fn1 and admitted having served two prior prison terms for petty theft with a prior in exchange for the prosecution's agreement (among other things) to strike an allegation that she previously had been convicted of a serious/violent felony offense (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On appeal, defendant contends the trial court erred in refusing to award one-for-one presentence conduct credits based on her dismissed prior strike conviction. We find defendant's contention persuasive and direct the trial court to award defendant an additional 33 days for a total of 65 days of conduct credits.
FACTUAL AND PROCEDURAL BACKGROUND*fn2
On December 29, 2010, pursuant to a plea agreement, defendant pled no contest to second degree burglary and admitted two prior prison commitment allegations with the understanding that she would be sentenced to a stipulated five-year prison term. The remaining allegations, including a strike conviction allegation, were dismissed as part of the negotiated resolution.
At the beginning of the proceedings, counsel for defendant recited his understanding of the agreement. His recitation included the following: "There's a stipulation to an aggravated prison sentence of five years. And that's going to be a halftime sentence." The prosecution said nothing about conduct credits when the negotiated resolution was presented to the court.
The plea form executed by defendant included a Harvey waiver*fn3 that read as follows:
"(HARVEY WAIVER) I STIPULATE THE SENTENCING JUDGE MAY CONSIDER MY PRIOR CRIMINAL HISTORY AND THE ENTIRE FACTUAL BACKGROUND OF THE CASE, INCLUDING ANY UNFILED, DISMISSED OR STRICKEN CHARGES OR ALLEGATIONS OR CASES WHEN GRANTING PROBATION, ORDERING RESTITUTION OR IMPOSING SENTENCE." (Italics added.)
Under former section 4019, a person imprisoned in local custody could earn conduct credit against his or her term of confinement under specified conditions. Effective September 28, 2010, section 2933 was amended to provide that certain defendants could earn presentence conduct credit at an increased rate, commonly referred to as "one-for-one credits." (Stats. 2010, ch. 426, §§ 2, 1, respectively, eff. Sept. 28, 2010.) Any inmate who was required to register as a sex offender, who had committed a serious felony, or who had a prior strike conviction, was not entitled to the benefit of the additional credit formula and could only accrue conduct credit at the prior rate of "one-for-two." (former § 2933, subd. (e).) The ...