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Filed 2/21/14 P. v. H owlan CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DI VISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. RICHARD HOWLAN, Defendant and Appellant. A137953
(San Francisco County Super. Ct. No. 209611)

Defendant Richard Howlan was placed on probation after plead ing guilty to felony second degree burglary and felony grand theft. 1 Several years later, the People alleged that Howlan violated his probation, and they moved to revoke it. Before admitting the violation, Howlan asked to be sentenced to county jail, rather than state prison, under the Criminal Justice Realignment Act of 2011 (Realignment Act or Act )

. 2 (§ 1170,
subd. (h).) The t rial court determined that Howlan was precluded from being sentenced to jail b ecause he had a prior conviction f or felony robbery in the S tate of Washington
that qualified a s a strike under California law

. Howlan admitted the probation violation

anyway , apparently in exchange for bei ng sentenced to the midterm for his crimes

. Without relying on the strike determination to increase the sent ence’s length, t he trial

1 The burglary charge was under Penal Code section 459, and the grand theft charge was under Penal Code section 487, subdivision (a). All statutory references are to the Penal Code unless otherwise indicated.

2 Amended by Statutes 2011, First Executive Ses sion 2011

- 2012, chapter 12, section 1.2

court sentenced him to two years in state prison

. It then released Howlan on parole because he had over two years of custody credits

. (See § 1170, subd. (a)(3). ) On appeal, H owlan argues, and the Attorney General concedes, that the case is subject to remand because the tria l court had insufficient evidence to find that the Washington robbery conviction qualified as a strike

. But we affirm because , as we explain below, Howlan has not identified any prejudice requiring a remand

. I. F ACTUAL AND P ROCEDURAL B ACKGROUND
In 2009 , Howlan ple ade d guilty to one felony count of second degree burglary and one felony coun t of grand theft

. The trial court suspended imposition of Howlan’s sentence and granted probation. In August 2012, the P eople moved to revoke Howlan’s probation. Howlan requested sentencing under the Realignment Act
, which allows eligible felons to “serve their terms of imprisonment in local custody rather than state prison.” ( People v. Cruz (2012) 207 C al.App.4th 664, 671 ; § 1170, subd. (h).) The People argued that Howlan

was in eligible to be locally sentenced under section 1170, subdivision (h) (section 1170(h)) because it excludes defendants who have an out

- of

- state conviction that would qualif y as a strike under Cal ifornia law

. (§ 1170, subd. (h)(3)(B)

. ) They argued that
H owlan ’s pr ior felony conviction in Washington for second degree robbery was such a qualifying offense

. 3 The People did not, however, attempt to rely on the prior conviction

3 The People also argued that a prior conviction in Washington for burglary disqualified Howlan from being sentenced under the Act. The trial court did not determine whether the burglary conviction qualified as a str ike, and no issues involving that conviction are before us.3

to increase the length of Howlan’s sentence. 4

W hether Howlan’s prior conviction was a strike turne d on whether the record of
conviction established that the conviction “involve[d] conduct that would qualify as a serious [or violent] felony in California.” ( People v. Avery ( 20 02 ) 27 Cal.4th 49, 53; see
also People v. Delgado (2008) 43 Cal.4th 1059, 1065; § 1170, subd. (h)(3)(B).) At a hearing in November 2012
, the People sought to introduce a certified packet of
information about the prior robbery conviction. Over Howlan’s ob jection that an affidavit of probable cause in the packet contained inadmissible hearsay, the trial court
admitted the entire ex hibit. The court determined that the prior conviction qualified as a
strike under California law based on the evidence admitted
, even if the affidavit o f probable cause was disregarded

. T he court then ruled that Howlan was in eligible for sentencing under section 1170(h)

. Howlan admitted to violating probation and his probation was revoked. Without rely ing on the prior conviction to increase the length of his sentence , the trial court
sentenced h im to two years in state prison

. But because he already had over two years of custody credits, Howlan received a “paper commit ment” and was placed on parole
instea d of actually being sent to prison

. (See § 1170, subd. (a)(3).) This timely appeal
followed

.

4 If they had, the prior conviction would have been required to be “pled and proven to a jury.” ( People v. Griffis (2013) 212 Cal.App.4th 956, 959, 962

- 963; see, e.g., § 667, subd. (e)(1) [requiring doubling of sentence term where defendant has one prior strike conviction “that has been pled and proved”].) No such requirement exists when a prior conviction is only used to find a defendant ineligible for sentencing under section 1170(h). ( Griffis , at pp. 959, 962.)4 II. D ISCUSSION
Howlan Fails to Identify A ny Prejudice Resulting from the Trial Court’s Determination that His Prior Conviction Was a Strike

. Howlan’s sole cont ention on appeal is that insufficient evidence supported the trial
court’s ruling that he was ineligible for sentencing under the Realignment Act. To decide whether a sentencing error justifies a remand for correction , we must determine whether

“ it is ‘

. . . reasonably probable that a more favorable sentence would have been imposed
in the absence of the error. ’ ” ( People v. Scott (1994) 9 Cal.4th 331, 355 .) T he parties have not identified any reason that the court’s ruling was detrimental to Howlan
, 5 a nd “i t is not this court’s function

. . . to speculate as to how [he] may have been prejudiced.” ( Mansell v. Board of Administration (1994) 30 Cal.A pp.4th 539, 546 .) W e therefore affirm without reaching the merits of his claim

. Although Howlan pleaded g uilty to the underlying offenses in 2009, the trial court suspended imposition of the sentence at that time and he was not actually sentenced until 2012. (See People v. Howard (1997) 16 Cal.4th 1081, 1087.) Thus, h ad the court not
concluded that the prio r conviction was a strike, Howlan would have been eligible for local sentencing under section 1170(h), which applies to all those “sentenced on or after October 1, 2011 .” ( § 1170, subd. (h)(6)

. ) But even though the court determined that
Howlan was in eligible for local sentencing under section 1170(h) , this determi nation did not have any actual e ffect on his custodial location because he received a paper
commitment and
, rather than having to serve any time in state prison or county jail , he was placed on parole

. Howlan argues that he was nevertheless harmed by the trial court’s finding
b ecause he should have been placed on postrelease community supervision (PRCS) instead of parole

. W hatever the merits of t his position, there is no remedy available

. Under section 3000.08, “[a]ny person released to parole supervision

. . . shall, regardless

5 We requested and received supplemental briefing on this issue under Government Code section 68081.5

of any subsequent determination that the person should have been released [ under PRCS], remain subject to [parole] after having served 60 days under [parole]

super v ision.” (§ 3000.08, subd. ( l ); see also § 3451, subd. (d) [person erroneously
released under PRCS instead of on parole remains subject to PRCS after serving 60 days
under PRCS].) Thus, e ven if Howlan should have been released on PRCS, he must now remain on parole because more than 60 days have passed since he began it

. The Attorney General suggests that the paper commitment to prison instead of county jail was detrimental to Howlan because it constitutes a “ prior separate prison
term” that could be used to increase his sentence in future proceedings. ( §§ 667.5,
subds. (a), (b), 1170, subd. (a)( 3).) W e are not persuaded. S ection 667.5 , subdivision (a) provides for a three

- year sentencing enhancement for “each pr ior separate prison term
served

. . . where the prior offense was [a] violent felon[y],” but neither of the underlying
crimes of second degree burglary and grand theft is a “violent felony.” ( S ee § 667.5,

s ubd. (c).) S ection 667.5 , subdivision (b) also provides for a one

- year sentencing

en hancement “for each prior separate prison term or county jail term imposed under [section 1170(h)] or when sentence is not suspended for any felony .” This provision is applicable to the underlying crimes, but it applies equally whether the prior sentence
committed the defendant to state prison or to county jail. Thus , the trial court’s
determination that Howlan was in eligible for sentencing under section 1170(h) did not
affect the application of section 667.5 in any future proceedings against him

. Howlan has failed to convince us that a remand for resentencing is required
because he has not shown that the tr ial court’s determination that the Washington robbery
conviction was a strike resulted in a less favorable sentence

. We therefore affirm without expressing an opinion on whether the court’s strike determination was proper

. III. D ISPOSITION The judgment is affirmed.6 _________________________ Humes, J.

We concur:

_________________________ Ruvolo, P.J.

_________________________ Reardon, J.