Nancy Ayers, Judge Superior Court County of Ventura (Super. Ct. No. 2011027647)
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
The recently enacted Realignment Act (Act) (Pen. Code, § 1170, subd. (h))*fn1 provides that certain adult felons receive commitments to county jail instead of state prison. The Act excludes felons who have prior serious or violent felony convictions. The Act appears to exempt from this exclusion felonies that stem from a juvenile adjudication. In this respect, the Act conflicts with the so called "Three Strikes" law (§ 667 et seq.), which the Legislature can amend only by a "supermajority" vote. We therefore hold that felons whose prior records include juvenile adjudications that involve serious or violent felonies may not receive county jail commitments under the Act.
Arturo Delgado appeals a judgment after conviction upon guilty plea of resisting an executive officer. (§ 69.) He admitted he had suffered two prior serious or violent "strikes," both of which were juvenile adjudications. (§ 667, subds. (c), (d)(1) & (3).) The trial court struck one prior strike, and sentenced Delgado to six years in state prison. We order a correction to the abstract of judgment regarding presentence custody credit and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Delgado was first declared a ward of the court when he was 10 years old. He threatened to have his gang friends shoot another student. His juvenile record is lengthy. In 2008, when he was 17 years old, he committed a robbery. While awaiting trial on that charge, he committed arson by setting his room at juvenile hall on fire. He was committed to the California Youth Authority (CYA).
Delgado hit a youth correctional counselor at the CYA about five months after he turned 18. The blow left a three-inch cut near the officer's temple. Delgado was charged with felony battery with injury on a peace officer and felony resisting an executive officer. (§§ 243, subd. (c)(2), 69.) He pled guilty to felony resisting arrest. The battery charge was dismissed.
The trial court struck Delgado's arson strike and imposed a three-year (high term) sentence, doubled to six years for the remaining strike. Delgado was 20 years old at the time of sentencing.
The trial court denied Delgado's request to serve his commitment in jail under the Act. The court found that the Act was intended to exclude offenders with prior juvenile strikes from prison, but found that the act was ineffective to amend the Three Strikes law without supermajority approved legislation. The court also found that Delgado was not a "low level offender" as contemplated by the provisions of the Act. The court denied presentence credits for the time from transfer to jail from CYA.
Commitment to Jail or Prison
The Three Strikes law is an initiative statue. It requires that, for felons with serious or violent felonies, "[t]here shall not be a commitment to any other facility other than state prison" (§ 667, subd. (c)(4)), and "[a] prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement." (Id., at subd. (d)(3).)*fn2
An initiative statute may not be amended without voter approval unless the initiative statute explicitly provides otherwise. (Cal. Const., art. 2, § 10, subd. (c).)*fn3 The Three Strikes law provides for amendment, but only by "supermajority" legislation, in other words, by statute passed in each house with two-thirds of the membership ...