Garcia

A defendant convicted of a violent felony, as defined in Penal Code section 667.5, may not accrue presentence conduct credits greater than 15 percent of his or actual period of confinement. (§ 2933.1, subd. (c).) One such violent felony is first degree burglary “wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.” (§ 667.5, subd. (c)(21).) Must the jury make a special finding that a nonaccomplice was present during the commission of the offense or may that issue be decided by the trial court? We conclude that, just as determining whether a prior conviction is a serious or violent felony for purposes of the “Three Strikes” law is within the province of the trial court (People v. Kelii (1999) 21 Cal.4th 452, 457-458 [ 87 Cal.Rptr.2d 674 , 981 P.2d 518 ] (Kelii), so too determining whether a defendant’s current conviction for first degree burglary is a violent felony for the purpose of calculating presentence conduct credits is properly part of the trial court’s traditional sentencing function.

FACTUAL AND PROCEDURAL BACKGROUND

Emilio Garcia and Heriberto Castillo were charged…