People v. Grewal CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN335445
- Trial judge
- Blaine K. Bowman
- Outcome
- modified — Affirmed as modified with directions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Patricia D. Benke
Analysis
The trial court sentenced the defendant to 11 years in prison, including a finding true on a Penal Code section 667.5, subdivision (c)(21) enhancement that limited his presentence credits. On appeal, the Court of Appeal affirmed the judgment as modified, directing the trial court to strike the enhancement and recalculate the credits because the enhancement does not apply to attempted burglary.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Application of Penal Code section 667.5, subdivision (c)(21) enhancement to limit presentence credits for an attempted residential burglary conviction.“Case law has established that section 667.5, subdivision (a) does not apply to attempts to commit any of the listed felonies. (People v. Ibarra (1982) 134 Cal.App.3d. 413, 425.)” | de novo | error | agree with court agree with court |
Authorities
- relied: People v. Ibarra (1982) 134 Cal.App.3d 413 — Section 667.5, subdivision (a) enhancements do not apply to attempts to commit the listed felonies.
- relied: People v. Garcia (2004) 121 Cal.App.4th 271 — A proved enhancement under section 667.5, subdivision (c) limits presentence credits to no more than 15 percent of actual presentence custody.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court sentenced Grewal to 11 years after a jury convicted him of attempted residential burglary and found true a section 667.5, subdivision (c)(21) allegation that a non-accomplice was present, which limited his presentence credits to 15 percent under section 2933.1. On appeal, with the People's concession, the Court of Appeal held that section 667.5, subdivision (c)(21) does not apply to an attempted burglary, directed the trial court to strike the true finding and recalculate presentence credits, and otherwise affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Application of the section 667.5, subdivision (c)(21) violent-felony finding to an attempted residential burglary conviction, resulting in the 15 percent presentence credit limitation of section 2933.1, subdivision (a).“In light of the fact that Grewal was not convicted of burglary within the meaning of section 667.5, subdivision (c)(21), the credit limitation of section 2933.1, subdivision (a) cannot apply.” | de novo | error (statutory interpretation) | agree with court Section 667.5, subdivision (c)(21) by its terms covers first degree burglary 'as defined in subdivision (a) of section 460'; an attempt under section 664 is a distinct offense not listed in subdivision (c), and People v. Ibarra holds section 667.5 does not reach attempts of the enumerated felonies. Because the credit limitation of section 2933.1 depends on a conviction of a listed violent felony, the trial court erred in applying it; the People's concession and the plain statutory text support the result. |
Authorities
- relied: People v. Ibarra (1982) 134 Cal.App.3d 413 — Section 667.5 does not apply to attempts to commit the felonies enumerated in subdivision (c).
- relied: People v. Garcia (2004) 121 Cal.App.4th 271 — A proved violent-felony finding under section 667.5, subdivision (c) limits presentence conduct credits to 15 percent of actual custody under section 2933.1, subdivision (a).
The appellate opinion: sound — The opinion applies the plain text of section 667.5, subdivision (c)(21), which covers completed first degree burglary rather than attempts, and relies on Ibarra and Garcia to tie the violent-felony finding to the credit limitation. The result is conceded by the People and follows directly from the statutory language, though the court's analysis is brief and does not elaborate on the attempt/completed-offense distinction beyond the single citation.
Opinion
Filed 3/23/16 P. v. Grewal CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068470
Plaintiff and Respondent, v. (Super. Ct. No. SCN335445)
BRANDON GREWAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Blaine K.
Bowman, Judge. Affirmed as modified with directions.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Brandon Grewal of attempted residential burglary as a lesser included offense of residential burglary. (Pen. Code,1 §§ 664, 459, 460.) The jury also 1 All statutory references are to the Penal Code unless otherwise specified. found true an allegation under section 667.5, subdivision (c)(21) that a person, other than an accomplice was present during the attempted burglary. Grewal admitted one strike prior (§ 667, subds. (b)-(i)), one serious felony prior (§ 667, subd. (a)(1)) and one prison prior (§ 667.5, subd. (b)).
The court sentenced Grewal to a determinate term of 11 years in prison.
Grewal appeals challenging only the application of section 667.5, subdivision (c)(21) to the calculation of his credits. Grewal argues, and the People correctly concede, that section 667.5, subdivision (c)(21) does not apply to attempted residential burglary.
Therefore, the trial court should recalculate his presentence credits. We agree and will direct the trial court to modify the judgment accordingly.2
DISCUSSION
Section 667.5, subdivision (a) sets forth a sentencing enhancement for "violent"
felonies. Those violent felonies are listed in section 667.5, subdivision (c). Subdivision (c)(21) in part defines a violent felony as "[a]ny burglary of the first degree, as defined in subdivision (a) of section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary."
Case law has established that section 667.5, subdivision (a) does not apply to attempts to commit any of the listed felonies. (People v. Ibarra (1982) 134 Cal.App.3d. 413, 425.)
A proved enhancement under section 667.5, subdivision (c) has the effect of limiting presentence credits to no more than 15 percent of the actual presentence custody.
(People v. Garcia (2004) 121 Cal.App.4th 271, 276; § 2933.1, subd. (a).)
2 The facts of the underlying offense are not relevant to the issue presented on this appeal. Accordingly, we will not set forth the traditional statement of facts. 2 In light of the fact that Grewal was not convicted of burglary within the meaning of section 667.5, subdivision (c)(21), the credit limitation of section 2933.1, subdivision (a) cannot apply. Thus the trial court is required to strike the true finding on the section 667.5, subdivision (c)(21) enhancement, and to recalculate Grewal's presentence credits.
DISPOSITION
The trial court is directed to modify the judgment by striking the section 667.5, subdivision (c)(21) enhancement and by recalculating Grewal's presentence credits accordingly. The court is further directed to modify the abstract of judgment to reflect the changes and to forward the abstract to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
Cites, in this corpus
- People v. Garcia B168985 · 2004-08-17