Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA365581.
BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.
Derral Wayne Blackston appeals his judgment of conviction of unauthorized driving a vehicle and possession of cocaine base. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On September 24, 2010, we notified defendant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed, and defendant has submitted no brief or letter. We have reviewed the entire record, and finding no arguable issues, affirm the judgment.
After a preliminary hearing, defendant was charged by information with two felony counts. Count 1 alleged that on December 8, 2009, defendant unlawfully took and drove a Ford van belonging to the U-Haul company, in violation of Vehicle Code section 10851, subdivision (a). Count 2 alleged that on the same date, defendant was in possession of cocaine base, a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a). It was also alleged that defendant had suffered six prior convictions resulting in prison terms, and that he had failed to remain free of prison custody for a period of five years without committing another felony, within the meaning of Penal Code section 667.5, subdivision (b). The information further alleged, pursuant to Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), the Three Strikes law, that defendant had two prior serious or violent felony convictions or juvenile adjudications.
Prior to trial, defendant filed a motion pursuant to Penal Code section 1538.5, to suppress all observations and evidence obtained as a result of the detention and arrest of defendant on December 8, 2009, at 65th Street and Western Avenue in Los Angeles. Defendant’s timely notice of appeal, filed June 28, 2010, limited his challenge to the trial court’s denial of the motion to suppress evidence, and he did not obtain a certificate of probable cause.
The motion to suppress was heard over three days in April and May 2010. The parties stipulated that police officers conducted the search and seizure without a warrant.
On the first day of hearing, Los Angeles Police Officer Francisco Arredondo testified that on December 8, 2009, at approximately 7:55 p.m., he was in his patrol car with his partner, traveling northbound on Western Avenue near 65th Street. As he approached the intersection, Officer Arredondo saw a large, white, U-Haul van with a single occupant. He identified defendant as the driver of the van.
Defendant turned left in front of the patrol car and other oncoming traffic onto eastbound 65th Street. Officer Arredondo had to brake sharply, and the oncoming cars had to yield to the van, in order to avoid a collision. As defendant turned, he looked toward the police officers with a surprised expression. As Officer Arredondo made a U turn to follow the van, defendant stopped and parked at the curb, emerged from the driver’s side door, and began walking westbound on the sidewalk, in the direction of the approaching patrol car. The officers parked behind the van. One of them asked defendant to stop, and told him that they intended to issue a citation.
Defendant stopped, and Officer Arredondo detained him approximately 20 feet from the van, while his partner checked the van’s Arizona license plate number. Within a minute, he determined that it had been reported stolen. Officer Arredondo smelled a strong odor of alcohol on defendant’s breath.
Officer Arredondo testified that he patted defendant down, and asked him whether he was on probation or parole. He discovered a key around defendant’s neck, and his partner, Officer Raymond Nonora, took the key to open the van to check its contents.
At the continued hearing, the trial court ruled that defendant had no standing to challenge the search of the van. The suppression motion continued with the testimony of Officer Nonora and defendant.
Officer Nonora testified that he was the passenger in the patrol car driven by his partner traveling northbound on Western Avenue, when defendant turned left in front of them, causing his partner to brake hard, and causing other cars to stop. As Officer Arredondo made a U-turn, defendant parked, got out of the van, and walked westbound toward Western Avenue.
When the officers reached defendant, Officer Nonora asked him to stay where he was. Defendant complied, and as Officer Arredondo took him to a nearby wall, Officer Nonora radioed in the van’s license plate number. As Officer Nonora took keys from defendant’s hand, he noticed something around his neck, but he was not sure what it was.
Defendant testified that when he made the left turn, he intended to go to a nearby market. His signal was on, he waited until the only oncoming car passed by, and he then made a lawful left turn. He claimed that when he turned left, there was no oncoming traffic and no police vehicle, and that he made no eye contact with any police officers.
After he parked on 65th Street, he walked back toward the intersection of 65th and Western, saw that the market was closed, and decided to cross the street to the liquor store there. As he walked to the intersection, the police car approached, and one of the officers said, “How’s it going?” Defendant replied, “It’s going all right.” An officer said, “So tell us what’s going on over here, ” and defendant replied, “Don’t ask me nothing like that.”
Defendant continued walking toward the intersection, because he felt he had done nothing wrong. The officers then blocked his path and asked whether he was on parole or probation. Defendant replied, “No, I’m not on anything, ” and then he attempted to walk north. When one officer said he smelled of alcohol, defendant replied, “This is bullshit, ” whereupon Officer Nonora told him to turn around and put his hands on top of his head. Defendant asked, “Or what?” Officer Nonora replied that he was asking the questions there, and then said, “Don’t try to run, or I’ll shoot you.” One of the officers patted him down and looked inside his sweatpants and sweatshirt. He took the keys to the van, which was on a black cord around his neck, and then went to check the van, while the other officer detained him.
After hearing evidence and the arguments of counsel, the trial court denied the motion to suppress and set the matter for a jury trial on June 11, 2010. On that date, the trial court denied defendant’s Romero motion to strike one of his prior felonies.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, the California Supreme Court held that a trial court may strike, on its own motion and “‘in furtherance of justice’” pursuant to Penal Code section 1385, subdivision (a), an allegation or finding that a defendant had previously been convicted of a serious or violent felony qualifying as a strike under the Three Strikes law.
After he was informed of his constitutional and other rights, and the consequences of a plea of guilty, defendant stated that he understood and waived his rights. Pursuant to the agreed upon disposition, defendant admitted one of his prior felony convictions -- first degree burglary in 1994 -- and pled guilty to count 2, possession of cocaine base. The trial court dismissed count 1, denied probation, and sentenced defendant to the low term of 16 months, which it doubled pursuant to the Three Strikes law.
See generally, People v. Mosby (2004) 33 Cal.4th 353, 359-362.
See Health and Safety Code section 11350, subdivision (a), and Penal Code section 18.
The trial court ordered defendant to make agreed upon restitution to the victim, in the sum of $2,500. The court imposed a $200 restitution fine, a $200 parole revocation restitution fine, which it stayed, a laboratory analysis fee and penalty assessment of $135, a criminal conviction fee of $30, and a court security fee of $30. The court ordered defendant to provide a DNA sample through the Department of Corrections.
The trial court found that defendant was entitled to custody credits of 190 actual days prior to sentencing, plus 94 conduct credits. The court did not state how it calculated the conduct credits, but it does not appear that it followed the formula of six days for every four served provided under the amended statute that was effective from January 25, 2010, until September 28, 2010, the time during which defendant was sentenced. (See Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50, eff. Jan. 25, 2010.) Because defendant did not raise any issues on appeal, and Penal Code section 1237.1 requires the filing of a motion in the trial court as a prerequisite to seeking appellate review of the award of presentence credits, we may not consider in what manner the amendment would have affected that award. (See People v. Acosta (1996) 48 Cal.App.4th 411, 427-428.) Defendant is not precluded from seeking relief in the trial court. (Id. at p. 428, fn. 8, citing, inter alia, People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15.)
Pursuant to Penal Code section 2900.5, a person sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, Penal Code section 4019 provides that a defendant may earn additional presentence credit against a sentence for work performance and good behavior time. (§ 4019, subds. (b), (c).) Collectively, these forms of presentence credit are known as “‘conduct credit.’” (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)
We conclude that defendant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
The judgment is affirmed.