(Super. Ct. Nos. 11F1836, 11F5776)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kenneth William Griffis pled guilty to possession of methamphetamine and receiving stolen property. The trial court sentenced him to two years eight months in prison because he had prior felony convictions in the State of Washington. Defendant contends under the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, ch. 15) he was entitled to a county jail sentence: (1) because his prior convictions were neither pled nor proven to a jury; and (2) the record contains insufficient evidence that any of his prior convictions qualified as a strike.
We conclude the prior Washington convictions constituted sentencing factors that did not need to be pled and proven to a jury to render him ineligible for county jail. The People, however, concede the record contains insufficient evidence to support the court's finding that defendant's prior Washington convictions constituted strikes under California law. Because it is correct, we accept that concession. Accordingly, we affirm defendant's conviction but remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On March 4, 2011, defendant was arrested for public intoxication when two Shasta County Deputy Marshalls saw him ride a bicycle into heavy traffic and narrowly avoid getting hit by three cars. During a search incident to arrest, officers discovered methamphetamine on him.
Defendant was charged with possessing methamphetamine, transporting methamphetamine, and public intoxication (the drug case). The complaint further alleged that defendant had been convicted of possessing a controlled substance in 2006 in Shasta County and that defendant had served a prior prison term within the meaning of Penal Code*fn1 section 667.5, subdivision (b). He pled guilty to possession of methamphetamine, all other charges were dismissed, and he was granted three years of Proposition 36 probation on April 20, 2011.
On June 10, 2011, and July 29, 2011, defendant admitted he violated his probation by using methamphetamine. Probation was reinstated on each occasion. On August 26, 2011, defendant admitted using methamphetamine and violating his probation for the third time. His potential exposure at the time was three years in custody.
On September 28, 2011, defendant was charged in a second case with receiving stolen property with an enhancement for a prior prison term (the property case). On December 13, 2011, defendant pled no contest. He entered the plea with the understanding that he would be sentenced to no more than two years and eight months on both the drug and property cases. The following exchange occurred at the plea hearing:
"THE COURT: In [the property case] you're going to change your plea on Count 1 to a no contest plea, the enhancement would be stricken, and what you'd be looking at on this case, along with [the drug case], is a two-year, eight-month lid. Which means that you could get two years, eight months in state prison. He doesn't have any qualifiers. You could get two years, eight months in county jail, or you could get lesser, including probation. Is that your understanding of the agreement?
At the sentencing hearing on January 12, 2011, the trial court denied probation and imposed a two-year, eight-month sentence for both the drug and the property cases. The trial court relied on the probation officer's report in denying ...