Filed 5/16/13 P. v. Strain 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,                                                                                  C069641

                   Plaintiff and Respondent,                                             (Super. Ct. No.
                                                                                            11-3746)
         v.

BRADLEY ALLEN STRAIN,

                   Defendant and Appellant.




         Defendant Bradley Allen Strain pleaded no contest to possession of
methamphetamine for sale (Health & Saf. Code, § 11378). The trial court sentenced
defendant to three years in state prison.
         On appeal, defendant raises three challenges to the state prison sentence. He
contends: (1) the trial court could not rely on the out-of-state prior because it was not
pleaded or proven; (2) there is insufficient evidence to support the trial court’s finding
that he had a prior out-of-state serious felony conviction which disqualified him from the
county jail provisions of Penal Code section 1170, subdivision (h); and (3) the state
prison commitment violated the terms of his plea agreement.

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       Agreeing with defendant’s second contention, we vacate the sentence and remand
for resentencing.
                    FACTUAL AND PROCEDURAL BACKGROUND
       We dispense with the facts of defendant’s crime, as they are unnecessary to
resolve this appeal.
       Defendant was charged by information with transportation of methamphetamine
(Health & Saf. Code, § 11379, subd. (a)), possession of methamphetamine for sale
(Health & Saf. Code, § 11378), and driving with a suspended license (Veh. Code, §
14601.2, subd. (a)). The information also alleged enhancements for a prior prison term
(Pen. Code, § 667.5, subd. (b)), and two prior felony convictions for driving under the
influence with three or more prior driving under the influence convictions within 10 years
(Pen. Code, § 1203, subd. (e)(4); Veh. Code, §§ 23152, subd. (a), 23550).
       Defendant signed and initialed a written plea declaration, which was signed by
defense counsel, the prosecutor, and the trial court. Defendant initialed a provision
describing the agreement as follows: “I will enter into a no contest plea to Count 2 --
Health and Safety Code section 11378, possession of a controlled substance for sale.
Remaining counts and enhancement[s] will be dropped. I will be sentenced to the upper
term of three years, which will be served in county prison pursuant to AB 109.”1
       The trial court (Shockley, J.) held a plea hearing on September 23, 2011. Defense
counsel made the following statement when describing the plea agreement to the trial
court: “It is agreed that he will be sentenced to a stipulated upper term of three years.
Given the change [due to] AB 109 after October 1st, he will be sentenced -- he will -- it is
my belief that he will serve this in local time, that is my belief, and I think that’s [the



1      Assembly Bill No. 109 (2011 Reg. Sess.) refers to the Realignment Act, which
enacted, among other things, Penal Code section 1170, subdivision (h). (See Stats. 2011,
ch. 15, § 450.)

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prosecutor’s] belief as well, however, he doesn’t want to stipulate to that, but -- [i]t’s my
understanding[.]”
        The prosecutor replied: “My position is because AB109 is so new, my
understanding is that at the time of sentencing the defendant will be serving a prison
sentence locally, however, I am not stipulating that that is necessarily correct, but will --
my offer is a three year term.”
        Defense counsel then stated: “If he was not eligible, then it would be an illegal
sentence anyway. So I have advised [defendant] that he will be serving locally, and for
some reason he wasn’t, that would be a basis for him to withdraw his plea, that’s where
we are at right now . . . . [¶] . . . [¶] Basically, we all agree that based on the
information we have, he should serve his sentence locally. It will be a prison sentence,
three years. [The prosecutor] just doesn’t -- wants to make sure he’s stipulating to
something if we’re wrong, and I think that’s not a problem.” Defendant then entered his
plea.
        At an October 17, 2011, sentencing hearing, the trial court (Mock, J.) noted the
language from the written plea agreement stating that the time would be served in county
jail pursuant to the Realignment Act. The prosecutor reiterated that the People did not
stipulate to local time. Defense counsel’s understanding was defendant would be
sentenced to local time because he was not a registered sex offender and did not have a
prior strike. Counsel said the probation department had since learned defendant had a
prior burglary conviction from Montana, and it believed that prior burglary was a strike.
Counsel asserted the conviction was not a strike because the Montana burglary statute
was broader than its California counterpart, and there was no record of the conviction.
The trial court indicated its agreement with the defense, but continued sentencing for the
prosecution to file a brief if desired.
        The probation report, filed November 3, 2011, listed defendant’s prior convictions,
including a 1998 burglary conviction in Montana. According to the probation report, the

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police report in the Montana case stated that: “defendant went into a residence with a
juvenile companion. He personally kicked in a locked door, entered the residence, and
took a box full of money. He later split up the money with the juvenile co-defendant.”
The probation report recommended a state prison term because the facts of the Montana
offense constituted first degree burglary in California, which rendered defendant
ineligible to serve his prison sentence in county jail under the Realignment Act.
       At a November 3, 2011, sentencing hearing, defense counsel asserted that the
Montana prior conviction was subject to a pleading and proof requirement and thus did
not disqualify defendant under Penal Code section 1170, subdivision (h). After the
prosecutor again reiterated that the People never stipulated to local time, defense counsel
said: “I think, just to clarify, what was placed on the record is, it was agreed that he
would be sentenced locally if he was entitled to be sentenced locally and he would not if
he wasn’t, and it’s a question of law that answers -- of course, a question of law for the
court and we have different opinions on it. We are prepared to submit.” (Italics added.)
       The trial court (Mock, J.) found the prior conviction was not subject to a pleading
and proof requirement, and, “based on the information contained in the police report and
provided by counsel today,” the Montana burglary conviction disqualified defendant
from sentencing under Penal Code section 1170, subdivision (h)(3). The court then
imposed a three-year state prison term.
                                       DISCUSSION
                                              I
       We deal with two of defendant’s contentions in this section. In the first, defendant
contends a serious felony conviction used to disqualify him under Penal Code section
1170, subdivision (h)(3), is subject to a pleading and proof requirement.




                                              4
       In the second, he contends there is insufficient evidence to support the trial court’s
finding that he was disqualified from sentencing under Penal Code section 1170,
subdivision (h), because his Montana burglary conviction was a serious felony.2
                                               A.
       Defendant asserts his state prison term violated his due process rights because the
basis of his state prison commitment, the trial court’s finding that his Montana burglary
conviction was a serious felony, must be pleaded and proven to the trier of fact. We
recently rejected this contention in another case, and do so here. (People v. Griffis (2013)
212 Cal.App.4th 956, 959 (Griffis).)
                                               B.
       Although the prior strike does not have to be pleaded and proven like an element
of the underlying offense, defendant is still entitled to due process. “[D]efendant is
entitled to due process in the award of credits, which in this context entails sufficient
notice of the facts that restrict his ability to earn credits and, if he does not admit them, a
reasonable opportunity to prepare and present a defense. [Citations.]” (People v. Lara
(2012) 54 Cal.4th 896, 906.) The same applies to a prior serious or violent felony
conviction used to disqualify a defendant from Realignment Act sentencing. Due process
also requires some level of evidentiary support as to the existence and nature of the prior
conviction in question. Our decision in Griffis illustrates this point.




2      Felonies punished pursuant to Penal Code section 1170, subdivision (h), have their
terms served in county jail rather than state prison and a concluding portion of the term
may be served through a form of probation instead of confinement. (People v. Lynch
(2012) 209 Cal.App.4th 353, 357.) Defendant’s crime is subject to the alternative
sentencing provisions of Penal Code section 1170, subdivision (h). (Health & Saf. Code,
§ 11378.) Penal Code section 1170, subdivision (h) does not apply, as relevant here, if
the defendant has a current or prior conviction for a serious or violent felony. (Pen.
Code, § 1170, subd. (h)(3).)

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       Determining whether an out-of-state conviction is a serious felony disqualifying
the defendant from sentencing under Penal Code section 1170, subdivision (h), is
resolved under the same standard applied to out-of-state convictions under the “Three
Strikes” law. “ ‘Under the Three Strikes law, a prior conviction from another jurisdiction
constitutes a strike if it is “for an offense that includes all of the elements of the particular
felony as defined in subdivision (c) of [Penal Code] Section 667.5 or subdivision (c) of
[Penal Code] Section 1192.7.” [Citations.] Thus, the prior foreign conviction “must
involve conduct that would qualify as a serious [or violent] felony in California.”
[Citation.] “To make this determination, the court may consider the entire record of the
prior conviction as well as the elements of the crime.” [Citation.] If the record
insufficiently reveals the facts of the prior offense, the court must presume the prior
conviction was for the least offense punishable under the foreign law.’ [Citation.]”
(Griffis, supra, 212 Cal.App.4th at p. 965.) Thus, if there is insufficient evidence on the
record that the out-of-state prior is a serious felony, then it cannot be used to reduce a
defendant’s conduct credits (see ibid.), or to disqualify a defendant from the Realignment
Act.
       At the relevant time in Montana, burglary was defined as follows: “A person
commits the offense of burglary if he knowingly enters or remains unlawfully in an
occupied structure with the purpose to commit an offense therein.” (Former Mont. Code,
Ann. § 45-6-204(1) (1998).)
       There are two differences between burglary in California and burglary in Montana.
The required intent in California to commit a burglary is the “intent to commit grand or
petit larceny or any felony . . . .” (Pen. Code, § 459.) In Montana the statute does not
define the kinds of crimes that must be intended, the intent to commit any crime suffices.
The second distinction is when the intent must be formed. In California the intent must
exist at the time of entry. (People v. Riel (2000) 22 Cal.4th 1153, 1204.) In Montana, the
phrase, “or remains,” expands the time when the intent may be formed beyond that

                                                6
required in California and allows the intent to be formed after entry. Thus a person could
be convicted of burglary in Montana which did not include all of the elements necessary
to prove a burglary in California.
       The trial court found defendant’s Montana burglary conviction constituted
burglary in California based on a Montana police report, summarized in the probation
report, stating that defendant and a juvenile companion broke into a locked residence and
took money.
       “In determining the substance of a prior conviction, the trier of fact may look to
the entire record of conviction. [Citation.] The ‘record of conviction’ includes the
charging document and court records reflecting defendant’s admission, no contest plea,
or guilty plea. [Citation.] It also includes those portions of a probation officer’s report
which contain the defendant’s admissions. [Citation.]” (People v. Gonzales (2005) 131
Cal.App.4th 767, 773.)
       In the context of finding insufficient proof of a foreign drunk driving conviction in
a Department of Motor Vehicles license suspension proceeding, we observed: “In the
criminal context, no case holds that police reports are part of ‘the record of conviction’
for purposes of proving prior serious felony convictions under Penal Code section 667,
subdivision (a). [Citation.]” (Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1521.)
Here, the record does not even include the police report, as the trial court relied on the
probation officer’s summary of that report in determining the Montana prior was a
serious felony. The trial court therefore erred in relying upon the police report to
establish the nature of the Montana conviction. Since there was no other evidence
establishing the nature of the conviction, insufficient evidence supports the trial court’s
finding that the Montana prior constituted a serious felony under California law.
       Since there is no double jeopardy bar to sentencing proceedings (Monge v.
California (1998) 524 U.S. 721, 724 [141 L.Ed.2d 615, 621]; People v. Monge (1997) 16



                                              7
Cal.4th 826, 829), on remand the People may offer new evidence that the prior qualified
as a serious felony. (See Griffis, supra, 212 Cal.App.4th at p. 965.)
                                              II
        In this section we deal with defendant’s third and final contention. In it, defendant
contends his state prison sentence violates the terms of his plea agreement. His claim is
based on the written felony plea form, which provides a three-year term in county jail
pursuant to Penal Code section 1170, subdivision (h) as the stipulated sentence. He
asserts the plea colloquy is consistent with his contention, as it also describes a stipulated
three-year county jail term. Defendant also notes that part of the plea form specifying the
length of parole was left blank.
        “When a guilty plea is entered in exchange for specified benefits such as the
dismissal of other counts or an agreed maximum punishment, both parties, including the
state, must abide by the terms of the agreement.” (People v. Walker (1991) 54 Cal.3d
1013, 1024 (Walker), disapproved on other grounds in People v. Villalobos (2012) 54
Cal.4th 177, 183.) A punishment which significantly varies from the plea agreement
violates a defendant’s rights, but a punishment which is insignificant relative to the whole
agreement may be imposed without violating the plea. (Walker, supra, at p. 1024.)
        As described above, the written felony plea form indicated a three-year county jail
term as the stipulated sentence. At the plea hearing, the prosecutor stated the People
were not stipulating to a county jail term, and defense counsel agreed that if defendant
was not subject to the county jail provisions of the Realignment Act, then a county jail
sentence would be “illegal,” and defendant would have grounds to withdraw from the
plea.
        Penal Code section 1192.5 provides in part that when a court approves a guilty or
no contest plea, “it shall inform the defendant prior to the making of the plea that (1) its
approval is not binding, (2) it may, at the time set for the hearing on the application for
probation or pronouncement of judgment, withdraw its approval in the light of further

                                              8
consideration of the matter, and (3) in that case, the defendant shall be permitted to
withdraw his or her plea if he or she desires to do so.”
       “Whether or not a defendant waives an objection to punishment exceeding the
terms of the bargain by the failure to raise the point in some fashion at sentencing
depends upon whether the trial court followed the requirements of [Penal Code] section
1192.5.” (Walker, supra, 54 Cal.3d at p. 1024.) “Absent a [Penal Code] section 1192.5
admonition, we cannot assume the defendant knew he had a right to withdraw his plea.
But when the admonition is given, and the defendant does not ask to withdraw the plea or
otherwise object to the sentence, he has waived the right to complain of the sentence
later.” (Walker, supra, at p. 1026.)
       Defendant initialed the following provision in the felony plea form: “My attorney
has explained to me that if the court refuses to accept the above-stated agreement, I will
be allowed to withdraw my plea.” This was shortly after the description of the plea
setting forth the three-year county jail term.
       Acknowledging the written warning, defendant maintains the Penal Code section
1192.5 admonition was insufficient because the trial court never orally advised defendant
about the warning, instead “asking only if [defendant] had reviewed the plea form.” “[A]
defendant who has signed a waiver form upon competent advice of his attorney has little
need to hear a ritual recitation of his rights by a trial judge. The judge need only
determine whether defendant had read and understood the contents of the form, and had
discussed them with his attorney.” (In re Ibarra (1983) 34 Cal.3d 277, 286.) The trial
court asked defendant if he had reviewed, understood, and signed the plea form;
defendant answered “yes” to all three questions. Therefore, defendant is bound by the
written Penal Code section 1192.5 admonition. Accordingly, his failure to withdraw
from the plea after the trial court imposed the state prison term forfeits his contention on
appeal.



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       Defendant claims trial counsel’s failure to request to withdraw from the plea
constitutes ineffective assistance of counsel. “ ‘Reviewing courts will reverse
convictions on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.)
       The plea agreement was advantageous to defendant even if he served the time in
state prison rather than county jail. If defendant withdrew from the plea, he faced
possible additional time from the prior prison term enhancement that was dismissed
under the plea agreement. More importantly, the People could amend the information to
include serious felony and strike allegations stemming from the Montana burglary
conviction, exposing defendant to a significantly greater sentence, of five years in state
prison tacked onto a doubled base term, than under the plea. Since there is a clear tactical
purpose for defense counsel’s decision, the failure to withdraw from the plea was not
ineffective assistance.
                                    DISPOSITION
       The conviction is affirmed, the sentence is vacated, and the matter is remanded to
the trial court for resentencing in accordance with this opinion.



                                                      NICHOLSON             , J.



We concur:



        RAYE              , P. J.



        BUTZ              , J.

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