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The People v. Samuel Jason Gregory

September 26, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SAMUEL JASON GREGORY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 11-357)

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

P. v. Gregory

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Samuel Jason Gregory pleaded guilty to corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a))*fn1 . The trial court sentenced defendant to a stipulated four-year state prison term with 180 days of presentence custody credit (120 actual and 60 conduct).

On appeal, defendant contends the trial court erred in relying on a dismissed strike allegation to reduce his presentence conduct credits. We affirm.

BACKGROUND

We dispense with the facts of defendant's crime as they are unnecessary to resolve his appeal.

Defendant was charged with corporal injury to a cohabitant (§ 273.5, subd. (a)) and false imprisonment (§ 237, subd. (a)), one prior strike (a 2003 robbery conviction) (§§ 667, subd. (e), 1192.7, subd. (c)(19), 211), and three prior prison terms (§ 667.5, subd. (b)). By agreement, defendant pleaded guilty to a single count, the corporal injury count, and stipulated to a four-year prison term. The remaining charges were dismissed. Presentence conduct credits were not mentioned in the plea form or during the plea colloquy.

The plea form included a Harvey*fn2 waiver that read as follows:

"I understand that as part of the plea agreement bargain, the following counts will be dismissed after sentencing: [¶] All other counts & special allegations to be dismissed. [¶] I understand and agree that the sentencing judge may consider facts underlying dismissed counts to determine restitution and to sentence me on the counts to which I am entering a plea."

The probation report found that defendant was entitled to presentence credit consisting of 120 actual days and 120 days of conduct credits. A footnote to the presentence credit calculation stated: "Based on a 2003 conviction of 211 PC, the defendant is not eligible for day for day credits. However, a day for day calculation is submitted pursuant to the plea agreement."

The trial court asked about custody credits at the sentencing hearing. The prosecuting attorney who appeared at sentencing replied that the prosecuting attorney who had appeared previously reviewed the case with defense counsel at the time of the plea, who was "in agreement with everything but the Cruz*fn3 credits, indicating to me that he had only promised that the defendant would get day-for-day credits after sentencing and the presentence credits would be one for two, ...


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