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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Arturo DELGADO, Defendant and Appellant.

2d Crim. No. B240880

Decided: February 25, 2013

Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy, Cynthia Ellington, Deputy Public Defender. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Seth P. McCutcheon, Deputy Attorney General, for Plaintiff and Respondent.

The recently enacted Realignment Act (Act) (Pen.Code, § 1170, subd. (h)) 1 provides that certain adult felons receive commitments to county jail instead of state prison.   The Act excludes felons who have prior serious or violent felony convictions.   The Act appears to exempt from this exclusion felonies that stem from a juvenile adjudication.   In this respect, the Act conflicts with the so called “Three Strikes” law (§ 667 et seq.), which the Legislature can amend only by a “supermajority” vote.   We therefore hold that felons whose prior records include juvenile adjudications that involve serious or violent felonies may not receive county jail commitments under the Act.

Arturo Delgado appeals a judgment after conviction upon guilty plea of resisting an executive officer. (§ 69.)   He admitted he had suffered two prior serious or violent “strikes,” both of which were juvenile adjudications. (§ 667, subds. (c), (d)(1) & (3).)   The trial court struck one prior strike, and sentenced Delgado to six years in state prison.   We order a correction to the abstract of judgment regarding presentence custody credit and otherwise affirm.


Delgado was first declared a ward of the court when he was 10 years old.   He threatened to have his gang friends shoot another student.   His juvenile record is lengthy.   In 2008, when he was 17 years old, he committed a robbery.   While awaiting trial on that charge, he committed arson by setting his room at juvenile hall on fire.   He was committed to the California Youth Authority (CYA).

Delgado hit a youth correctional counselor at the CYA about five months after he turned 18.   The blow left a three-inch cut near the officer's temple.   Delgado was charged with felony battery with injury on a peace officer and felony resisting an executive officer. (§§ 243, subd. (c)(2), 69.)   He pled guilty to felony resisting arrest.   The battery charge was dismissed.

The trial court struck Delgado's arson strike and imposed a three-year (high term) sentence, doubled to six years for the remaining strike.   Delgado was 20 years old at the time of sentencing.

The trial court denied Delgado's request to serve his commitment in jail under the Act. The court found that the Act was intended to exclude offenders with prior juvenile strikes from prison, but found that the act was ineffective to amend the Three Strikes law without supermajority approved legislation.   The court also found that Delgado was not a “low level offender” as contemplated by the provisions of the Act. The court denied presentence credits for the time from transfer to jail from CYA.


Commitment to Jail or Prison

The Three Strikes law is an initiative statue.   It requires that, for felons with serious or violent felonies, “[t]here shall not be a commitment to any other facility other than state prison” (§ 667, subd. (c)(4)), and “[a] prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement.”  (Id., at subd. (d)(3).) 2

An initiative statute may not be amended without voter approval unless the initiative statute explicitly provides otherwise.  (Cal. Const., art. 2, § 10, subd. (c).) 3  The Three Strikes law provides for amendment, but only by “supermajority” legislation, in other words, by statute passed in each house with two-thirds of the membership concurring. (§ 667, subd. (j);  Prop. 184, Gen. Elec. (Nov. 8, 1994) Preamble, § 4.)

The Legislature passed the Realignment Act without voter approval or two-thirds supermajority vote.   The Act requires that most felons be committed to county jail.   Like the Three Strikes law, it excludes from its provisions felons who have prior convictions for serious or violent felonies.4  The Act, however, is silent about prior juvenile adjudications. (§ 1170, subd. (h).)

The Act may reasonably be interpreted to exclude from a prison sentence those felons whose prior strikes were the result of juvenile adjudications.   The final version of the Act omitted an earlier provision explicitly requiring such offenders to be housed in prison.  (Sen. Amend. to Assem. Bill No. 17 (2011–2012 1st Ex. Sess.) Sept. 2, 2011;  Sen. Amend. to Assem. Bill No. 17 (2011–2012 1st Ex. Sess.) Sept. 7, 2011.)  “When the Legislature chooses to omit a provision from the final version of a statute which was included in an earlier version, this is strong evidence that the act as adopted should not be construed to incorporate the original provision.”  (Central Delta Water Agency v. State Water Resources Control Board (1993) 17 Cal.App.4th 621, 634, 21 Cal.Rptr.2d 453.)

But whatever the Legislature's intention when it adopted the Act, it had no power to amend the Three Strikes law without voter approval or two-thirds vote of the Legislature.  (Cal. Const., art. 2, § 10;  § 667, subd. (j);  see, e.g., People v. Kelly (2010) 47 Cal.4th 1008, 1042, 103 Cal.Rptr.3d 733, 222 P.3d 186 [Under Cal. Const., art. 3, § 10, the Legislature did not have power to amend the Compassionate Use Act (Health & Saf.Code, § 11362.5) with the Medical Marijuana Program (Health & Saf.Code, § 11362.77) ].)

Delgado argues that the realignment legislation is not subject to the supermajority restriction that is expressed in section 667, subdivision (j), because realignment relates to housing, not determination of a sentence.   But the intent of the initiative provision section 667, subdivisions (c)(4) and (d)(3) is to exclude felons with prior juvenile strikes from jail.   Courts have a duty to “jealously guard” the People's initiative power, applying liberal construction to it wherever it is challenged.  (People v. Kelly, supra, 47 Cal.4th at p. 1025, 103 Cal.Rptr.3d 733, 222 P.3d 186.)   The Act does not permit felons with prior juvenile strike convictions to be housed in any facility other than state prison.   Where justice requires housing such an offender in county jail, the trial court retains discretion to strike prior juvenile adjudications.  (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628.)

Presentence Custody Credit

Delgado's time in the Ventura County jail was solely attributable to the offense for which he was convicted here. (§ 2900.5, subd. (b).)  His overlapping commitment to CYA was for a non-punitive purpose.  (In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65;  In re Charles C. (1991) 232 Cal.App.3d 952, 960, 284 Cal.Rptr. 4.)   He is therefore entitled to 378 days of presentence credit, consisting of 252 actual days and 126 days of conduct credit, and respondent agrees.

Discretion to Impose High Term Sentence

The trial court did not abuse its discretion when it imposed the high term.  (People v. Carmony (2004) 33 Cal.4th 367, 374, 14 Cal.Rptr.3d 880, 92 P.3d 369 [review for abuse of discretion].)   Delgado contends that the current conviction is not the type of crime for which six years is appropriate, that the court did not consider his background of untreated mental illness, and that a lengthy prison term will preclude his rehabilitation.

Six years is the authorized sentence if aggravating factors outweigh those in mitigation.  (People v. Scott (1994) 9 Cal.4th 331, 355, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)   The trial court did not abuse its discretion when it determined that aggravating factors predominated.   Delgado's offense was violent.   He injured a correctional officer.   He did not take responsibility for his conduct in the probation presentence interview.   His prior criminal history included sustained juvenile petitions for criminal threats, robbery, gang enhancements, drug possession and sales, assault, battery and arson.   He also had an adult conviction for bringing drugs into CYA. He had at least four major “write-ups” in jail from the time he was transferred from CYA for this case until the time he was sentenced.   We presume the court reviewed Delgado's mental health history as reported in the probation report, including his diagnosis at age 10 or 11 with attention-deficit hypersensitivity disorder, and at age 14 with depression, and that he stopped taking prescribed Adderall and Zoloft in 2001.   The court also considered Delgado's difficult childhood.   There were no other mitigating factors.   We will not reweigh the valid factors that bore upon the decision below.  (People v. Scott, supra, 9 Cal.4th at p. 355, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)


We order the trial court to amend the abstract of judgment to reflect 378 days of presentence credit.   The judgment is otherwise affirmed.


1.   All statutory references are to the Penal Code unless otherwise stated.

2.   The juvenile adjudication must meet certain criteria, all of which are met here. (§ 667, subd. (d)(3).)

3.   “The Legislature ․ may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.”

4.   Both the Act and the Three Strikes law define “serious” felonies as those listed in section 1192.7, subdivision (c) and “violent” felonies as those listed in section 667.5, subdivision (c).


We concur: YEGAN, J. PERREN, J.