(Super. Ct. No. 2011027647) Nancy Ayers, Judge Superior Court County of Ventura
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
OPINION FOLLOWING REHEARING
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. It appears to exempt from this exclusion felonies that stem from a juvenile adjudication. In this respect, the Act conflicts with the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), which the Legislature can amend only by a supermajority vote (§ 667, subd. (j)). We therefore hold that felons whose 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 two prior serious or violent strikes, both of which were juvenile adjudications. (§§ 1170.12, subds. (a), (b)(1) & (3), 667, subds. (c), (d)(1) & (3).) 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 Division of Juvenile Justice (DJJ).
Delgado hit a youth correctional counselor at the DJJ 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 (upper term) sentence, doubled to six years for the robbery 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. It reasoned that the Act could not exclude offenders with prior juvenile strikes from prison without amending the Three Strikes law by supermajority. The court also found that Delgado was not a "low level offender" as contemplated by the Act. The court denied presentence credits for the days from transfer to jail from the DJJ.
Commitment to Jail or ...