People v. Whittington CA3

BACKGROUND

The People charged defendant with the first degree residential burglary of an inhabited residence, specifically alleging that a nonaccomplice had been present in the residence during the commission of the burglary. (§§ 459, 462, subd. (a), 667.5, subd. (c)(21).) The People further alleged defendant had a prior strike conviction. (§§ 667, subd. (a), 667, subds (b)-(i), 1170.12.) The parties negotiated an open plea agreement under which defendant pleaded no contest to the above charges and allegations. During the plea hearing, the trial court said first degree burglary was a serious felony, but the prosecutor noted that the allegation under section 667.5, subdivision (c)(21) rendered the offense a violent felony because the home was occupied at the time of the offense. The trial court acknowledged the correction and stated, “What that means is it’s considered a violent felony in addition to a serious felony. It’s still a strike under the three strikes law, but a violent felony changes the amount of credits you would receive. [¶] For a strike you have to serve 80 percent of your time. For a violent felony you have to serve 85 percent of your time. That’s the main…