Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-480538.
STEIN, J.
Counsel for defendant David Lynn Campbell has filed an opening brief in which he raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel represents defendant has been apprised of his right to file a supplemental brief. Defendant has not filed a brief.
We have conducted the review requested by counsel, and finding no arguable issues, affirm the judgment.
BACKGROUND
On January 25, 2006, defendant was arrested for absconding from parole. A search of his person uncovered $1,180 in his jacket pocket, three pieces of knotted clear plastic containing, respectively, 11.03 net grams, 6.94 net grams and 18.02 net grams of methamphetamine and a glass pipe with white residue. A search of his car uncovered three small, empty zip-lock bags, an operable gram scale and a cellular telephone that received at least 10 calls while the police were at that location. Defendant was charged with unlawfully possessing methamphetamine for sale (Health & Safe. Code, § 11378) and unlawfully transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). As to both of these charges it was alleged defendant had suffered six prior convictions within the meaning of Penal Code section 1203, subdivision (e)(4)). Defendant also was charged with misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)), and unlawful possession of a device used for smoking a controlled substance (Pen. Code, § 11364, subd. (a)), also a misdemeanor. It further was alleged defendant had suffered five convictions within the meaning of Penal Code section 667.5, subdivision (b), exposing him to five one-year enhancements.
Defendant was incarcerated from the date of his arrest, January 25, 2006, until June 14, 2006, when he completed the term for his parole violation. At that time he was released on bail on the January 2006 charges. On September 27, 2006, he was arrested after a traffic stop. The police found a plastic bag containing 20.22 grams of marijuana in defendant’s pants, plus $365 and a cellular telephone. They found some loose bullets in the trunk of his car. Defendant was incarcerated following his arrest.
On December 14, 2006, defendant waived his right to a preliminary hearing. The following day defendant pleaded no contest to one charge of felony possession of methamphetamine for sale, and to misdemeanor resisting arrest, and admitted having suffered three prior convictions for which he had served prison sentences. Defendant’s attorney explained that all other charges, arising from both arrests, were to be dismissed with Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754). Defendant signed and initialed a waiver form indicating he understood and was waiving the constitutional rights he was giving up by entering the plea, that he was not being pressured in any way to enter the plea, that he understood he could receive a term of six years in prison followed by parole for five to seven years, and that he understood the other consequences of entering the plea. The form also recited the custody term would be “6 years w/credits from both cases (all) going to this case,” and that defendant had stipulated to “forfeiture of money seized in both cases, & destruction of evidence seized.”
A sentencing hearing was held on February 16, 2007. By this time a probation report had been prepared, which, among other things, explained defendant was not entitled to credits for the time served between January 25, 2006, and June 14, 2006, because he had served time not only because of his arrest for the January offenses, but because of the parole revocation. Defendant asserted he had understood he would be credited with that time. Defendant and his attorney also complained about the six-year term to which defendant had agreed. Counsel pointed out the agreement had taken place before the decision in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham), asserting defendant’s plea agreement did not waive his right to raise issues arising from that decision. The prosecutor pointed out that absent the plea agreement, defendant could have been sentenced for to up to five or six additional years in prison. Defendant complained he had felt “boxed in” at the time of entering his plea, noting he had private counsel but was forced to relieve him in order to accept the plea agreement negotiated by the public defender assigned to the second case. Defendant complained, again, he thought that as part of the plea agreement he would be getting credit for the time served between January 25, 2006, and June 14, 2006, stating if he could not get that credit, he wished to withdraw his plea.
The court entered judgment, sentencing defendant to a term of six years, ordering him to register as required by Health and Safety Code section 11590, provide blood and saliva samples as required by Penal Code section 296, pay a restitution fine in the amount of $1,200, as required by Penal Code section 1202.4, subd. (a)(3)(b) and a suspended restitution fine in the same amount as required by Penal Code section 1202.45, and a court security fee. Defendant was given credit for 114 days’ actual credits plus 72 days’ conduct credits and 29 additional actual credits, for a total award of 216 credits. He was not awarded credits for the time served between January 25, 2006, and June 14, 2006.
Defendant appealed. He has requested and received a certificate of probable cause on his claims of ineffective assistance of counsel, that the plea bargain had not been honored and that he had not been allowed to withdraw his plea. Defendant further complains he had not been sentenced to the midterm, arguing that after Cunningham, supra, 127 S.Ct. 856, the court lacked authority to sentence him to the aggravated term.
DISCUSSION
Penal Code section 1237.5 limits the issues cognizable on appeal from a judgment of conviction upon a guilty plea to “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings” (Pen. Code, § 1237.5, subd. (a)), and then only when the trial court has issued a certificate of probable cause (Pen. Code, § 1237.5, subd. (b)). Here, defendant sought and obtained a certificate of probable cause on his claims of error in rejecting his claim the plea bargain was not being honored, error in denying his request to withdraw his plea and ineffective assistance of counsel.
Defendant’s chief complaint was that he did not receive credits for the 141 days he was in custody between January 25, 2006, and June 14, 2006. A defendant is entitled to presentence credits for time in custody against the term of his imprisonment (Pen Code, § 2900.5, subd. (a)), but only “where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted” (Pen. Code, § 2900.5, subd. (b)). As relevant here, this means a defendant is not entitled to credits against a term of imprisonment for time spent in custody when he would have been in custody anyway for parole violations. (People v. Bruner (1995) 9 Cal.4th 1178, 1180-1811.) The court stated there, “In sum, we hold . . . that where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a ‘but for’ cause of the earlier restraint.” (Id. at pp. 1193-1194.) Defendant was stopped for a parole violation and would have been in custody for that violation irrespective of charges filed against him when contraband was found on his person. He was not entitled to the credits he claimed against his conviction for the January 25, 2006 offenses.
The plea bargain was that defendant would receive a sentence of six years and be given credits from “both cases.” Two cases were pending against defendant at the time he entered his plea: the case arising out of the January 25, 2006 arrest and the case arising out of the September 27, 2006 arrest. The court, therefore, quite properly recognized that under the terms of the plea bargain, defendant was entitled to such credits as he was permitted in connection with both of those cases. As discussed above, defendant was not entitled to credits for the period from January 25, 2006, to June 14, 2006, because he was in custody during that time for a parole violation on an unrelated case. It follows both that the court properly interpreted the plea bargain and that it honored its terms.
“A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. [Citation.] ‘Good cause’ means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is ‘within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.’ [Citation.]” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea,” but must be shown by “clear and convincing evidence. [Citation.]” (People v. Cruz (1974) 12 Cal.3d 562, 566.) On appeal we accept “all factual findings of the trial court that are supported by substantial evidence. [Citation.]” (People v. Ravaux, supra, at p. 917.)
Assuming without deciding a defendant may withdraw a plea because he acted under a mistaken belief as to the credits available to him, the question here is whether the evidence supports the trial court’s implicit finding there was no mistake; i.e., that at the time of entering his plea, defendant was made aware he would not receive credits for the time served on the parole violation. The evidence fully supports that finding. The prosecutor explained they had discussed with defendant all the credits he would be receiving. She had spoken with defense counsel about parole credits, and did not believe they had any control over them. When she agreed defendant could receive credits for “both cases,” she was agreeing defendant could receive credit for time served in connection with the September 27, 2006 arrest, even though those charges were being dismissed, and she specifically addressed his parole credits. Substantial evidence supports the implicit finding defendant was made aware of the credits to which he was entitled and agreed to the plea on that basis.
The evidence also fails to show defendant’s plea was in any way coerced or in some way was the result of the ineffective assistance of counsel. Although defendant complained of feeling “boxed in” when he entered his plea, complaining that his private attorney had missed court dates, the record indicates defendant’s frustration with his attorney had nothing to do with his decision to plead no contest. The plea was favorable to defendant in that all charges relating to the September 2006 arrest were dropped. If he had gone to trial on both matters, he might have received nearly double the term he actually received. Defendant specifically agreed on the waiver form that he had had enough time to discuss his case with his attorney and no one had placed any pressure on him to obtain the plea. It was pointed out defendant had asked that his private attorney be relieved so that he could take the plea bargain. It also appears defendant’s private attorney had negotiated a plea nearly identical to the one which the prosecutor offered to the deputy public defender. The court gave them time to contact defendant’s private attorney, but defendant wanted to terminate that attorney’s services. Nothing in those proceedings suggests defendant was being pressured to take the plea, and nothing in them suggests defendant was suffering the ineffective assistance of counsel. It also is true that “the fact that [a defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn. [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (Ravaux, supra, 142 Cal.App.4th at p. 919.)
It also is irrelevant that Cunningham, supra, 127 S.Ct. 856was decided after defendant entered his plea. A voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate the plea rested on a faulty premise. (Brady v. United States (1970) 397 U.S. 742, passim.) It follows that even if defendant’s plea was based on his understanding of pre-Cunningham law, that the Supreme Court in Cunningham reinterpreted the law provided no basis for withdrawing the plea. In addition, Cunningham did not alter existing law holding that the trial court is entitled to consider prior prison terms and other recidivist conduct in selecting the aggravated term, even though factual issues relating to such conduct have not been determined by a jury. (See Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000)530 U.S. 466, 490.)
In sum, we have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.
CONCLUSION
The judgment is affirmed.
We concur: MARCHIANO, P. J., SWAGER, J.