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The People v. Jennifer Pearl Carter

October 4, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JENNIFER PEARL CARTER, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF113618)

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

P. v. Carter 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jennifer Pearl Carter pleaded no contest to embezzlement from an elder. The trial court sentenced her to one year in prison consecutive to a two-year prison term she was already serving on a prior conviction.

Defendant contends (1) the trial court should have committed her to county jail under the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15), and (2) the failure to commit her to jail violated her right to equal protection.

We conclude (1) defendant was already sentenced to prison on a prior conviction constituting the principal offense, and thus she must also serve her subordinate term for embezzlement in prison, even though the offense would otherwise qualify for a jail commitment under the Realignment Act; and (2) this court recently rejected equal protection contentions in People v. Lynch (Sept. 13, 2012, C068476) ____ Cal.App.4th ____ [2012 Cal.App. Lexis 975], and that decision resolves defendant's contentions here.

We will affirm the judgment.

BACKGROUND

Defendant used her grandmother's ATM card and personal identification number to make ten unauthorized withdrawals totaling $420. She subsequently pleaded no contest to embezzlement from an elder. (Pen. Code, § 368, subd. (d)).*fn1

At the time of her plea defendant was already serving a two-year prison sentence in case No. 11-1444 for felony theft or unauthorized use of a vehicle, along with a concurrent two-year prison term in case No. 10-2558 for possession of a controlled substance.

The plea agreement in this case included a stipulated sentence of one year, to run consecutively to the two-year term in case No. 11-1444. But the prosecutor informed the trial court that the parties could not agree whether defendant would be committed to prison, or whether she would be committed to jail pursuant to the Realignment Act.

The probation report recommended that the trial court sentence defendant to prison. The report said defendant was not entitled to commitment in jail for the embezzlement offense because she was already serving a prison term.

Nonetheless, at the sentencing hearing, defense counsel and the prosecutor agreed that defendant should be committed to jail under the Realignment Act because she was being resentenced on the prior conviction. The trial court disagreed and sentenced her to an aggregate term of three years in prison, consisting of two years for theft or unauthorized use of a vehicle in case No. ...


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