Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA054051 Mark S. Arnold, Judge.
Petition for Writ of Habeas Corpus.
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P. J.
Darren K. Collins appeals from a judgment entered following an order revoking probation. Previously he pled no contest to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and admitted that he suffered three prior felony convictions, for which he served prison terms, within the meaning of Penal Code section 667.5, subdivision (b). Pursuant to the terms of his negotiated plea, he was sentenced to prison for the upper term of three years plus three years for the prior prison term enhancements, execution of his sentence was suspended and he was placed on formal probation for five years upon certain terms and conditions.
Appellant also filed a petition and amended petition for writ of habeas corpus (B201190) making the same arguments as he does in this appeal. By order dated November 15, 2007, consideration and determination of the petition was ordered deferred until consideration of the instant appeal.
Appellant appealed the judgment claiming error under Blakely v. Washington (2004) 542 U.S. 296. In an unpublished opinion filed March 29, 2005 (Case no. B173604), this court affirmed the judgment finding that appellant’s challenge to his negotiated sentence imposed as part of his plea bargain was a challenge to the validity of the plea requiring a certificate of probable cause (see People v. Panizzon (1996) 13 Cal.4th 68, 79) which appellant had not obtained. Additionally, appellant had agreed to the sentence. The evidence as summarized in the opinion establishes that on January 9, 2003, at approximately 1:00 a.m., appellant was riding his bicycle, without a light, on the sidewalk. When deputy sheriffs stopped him, they recovered from his person a plastic baggie containing rock cocaine.
On December 2, 2005, probation was revoked and appellant’s Marsden motion was heard and denied.
People v. Marsden (1970) 2 Cal.3d 118.
The evidence at the probation revocation hearing established that on November 30, 2005, at approximately 8:30 p.m., Angel Sanchez was working as a loss prevention agent for a Robinsons-May store on Hawthorne Boulevard in Redondo Beach when he saw Irma Giles select two bottles of Calvin Klein fragrance from a display, walk towards the men’s furnishings department and hand the fragrances to appellant. Appellant then concealed the two bottles inside a large Christmas gift bag that was on the floor. Appellant then took the bag from the floor and he and Ms. Giles walked out of the store without paying for the items. Mr. Sanchez contacted appellant outside the store and recovered an additional five containers of Estee Lauder fragrance from inside the Christmas bag. Appellant testified he had gone shopping with Ms. Giles, that she had never discussed plans to steal items and that he never agreed to help her steal items. Appellant assumed Ms. Giles had paid for the cologne with a prepaid credit card. The court took judicial notice that Irma Giles pled no contest on December 16, 2005 in this case and was sentenced to 180 days in jail and placed on three years’ formal probation.
The court granted the prosecution’s motion to dismiss the theft case against appellant pursuant to Penal Code section 1385 based on the finding of a violation of probation.
On May 31, 2006, the court imposed the previously suspended sentence of six years. Appellant was awarded 802 days of credit which consisted of 535 actual days and 267 days of conduct credit. Appellant’s request for credit for time spent in an outpatient drug treatment program was denied as was his request to calculate his conduct credits differently.
Appellant filed an ex parte motion in the superior court to correct the minute order and abstract of judgment to reflect an award of 802 days of presentence custody credits, consisting of 535 actual and 267 conduct credits rather than 802 days consisting of 711 actual and 91 conduct credits. On February 1, 2008, the amended abstract of judgment reflecting the requested correction was filed in this court.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On June 8, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. He, thereafter, was granted several extensions and on November 14, 2007, filed a supplemental brief.
He asserted that the loss prevention agents “recovered seven boxed fragrance sets and a video tape, and alleged they did not retain for prints or viewing nor allow the Redondo Beach Police Dept. Officer Anderson #1229 to obtain them by not informing him. Although Anderson #1229 was present when [appellant] arrived at loss prevention office. Original police notes not disclosed, the original hand-written statement by Anderson of codefendant not disclosed. And these material evidence would undermine the prosecution’s allegation and witnesses statement and testimony.” Appellant also asserted that letters written by codefendant Irma Giles to appellant were lost and destroyed by the Los Angeles County Sheriff’s Department. These letters would show that codefendant Giles apologized for lying to prevent her own imprisonment. Appellant also asserted that the store failed to respond to a request for reports, notes, floor layout of clothing racks, displays, etc.
Appellant also claimed that witness Angel Sanchez gave false testimony and that proceedings not reflected in the record demonstrate Mr. Sanchez’s lack of credibility.
Appellant also claimed he was impeached following his testimony with his silence in response to the loss prevention agent’s accusation that he had stolen the items.
Appellant argued his plea in 2003 was not intelligently or knowingly made in that the prosecutor misled the court and others about the maximum sentence alleging it was eight years. Appellant stated on the alleged five priors, two were for suspended sentences and no prison term was ever served.
Appellant claimed he was entitled to credits for court ordered drug counseling and entitled to be released earlier just as inmates in the county jail system are.
Appellant further claimed that after one judge was disqualified under Code of Civil Procedure section 170.3, and the matter was sent to another judge, “parties are supposed to agree on a new judge” and appellant would not agree to the new judge.
He also claimed he received ineffective assistance of trial counsel.
We have examined the entire record and are satisfied that no arguable issues exist. “The standard of proof required for revocation of probation is a preponderance of evidence to support the violation. [Citation.] Trial courts are granted great discretion in deciding whether or not to revoke probation. [Citation.] ‘Absent abuse of that discretion, an appellate court will not disturb the trial court’s findings.’ [Citation.]” (People v. Kelly (2007) 154 Cal.App.4th 961, 965.)
We review the evidence in the light most favorable to the respondent. (People v. Johnson, (1980) 26 Cal.3d 557, 577.) “In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact.” (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
While appellant claims the stolen items should have been retained to allow fingerprints to be taken and that a video tape should have been retained for viewing, “direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” (Evid. Code, § 411.) Whether stronger evidence should have been presented by the prosecution was for the trier of fact to consider. (See Evid. Code, § 413.) Further, with reference to appellant’s claim that the store failed to respond to his requests for reports, notes, floor layout of displays, etc., the statutory scheme for discovery in a criminal case does not apply to information possessed by third parties. (See Teal v. Superior Court (2004) 117 Cal.App.4th 488, 491.)
Regarding appellant’s claim that the government failed to preserve certain evidence, “[t]he federal constitutional guarantee of due process imposes a duty on the state to preserve only such ‘. . . evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, [citation] evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when . . . the defendant’s challenge is to ‘. . . the failure of the State to preserve evidentiary material of which no more can be said than that it . . . might have exonerated the defendant.’ [Citation.] In this circumstance, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ [Citation.]” (People v. Beeler (1995) 9 Cal.4th 953, 976.) Applying these principles, appellant has failed to demonstrate constitutionally improper conduct in any alleged failure to preserve evidence.
Contrary to appellant’s claim, his failure to offer an alternative explanation as to how he obtained the store’s merchandise was properly considered circumstantial evidence tending to show his guilt. His failure to reply to accusations of theft was not based on his constitutional right to remain silent. (See Griffin v. California (1965) 380 U.S. 609.)
Appellant additionally raises issues relative to his plea and sentence in 2003, asserting the plea was not intelligently or knowingly made. Such challenges are not timely raised following a revocation of probation. (See People v. Mitchell (1981) 125 Cal.App.3d 715, 718.) Further, appellant has failed to establish that he received any erroneous advice or that he was prejudiced by any alleged misrepresentation regarding his potential maximum sentence. (See In re Alvernaz (1992) 2 Cal.4th 924, 945; People v. Goodrum (1991) 228 Cal.App.3d 397, 401.)
Contrary to appellant’s claim, he is not entitled to credits for an outpatient drug rehabilitation program. (See People v. Schnaible (1985) 165 Cal.App.3d 275, 277.) Calculation of actual days of conduct credit earned by appellant during his confinement is left to prison authorities. (See People v. Buckhalter (2001) 26 Cal.4th 20, 31.) Appellant’s claim regarding his challenge to a judge is not reviewable on appeal and could only have been reviewed by writ of mandate from the appropriate court of appeal filed and served within 10 days after service of the notice of entry of the court’s order determining the question of disqualification. (Code of Civ. Proc., § 170.3, subd. (d).)
Further, appellant has not demonstrated ineffective assistance of counsel on this record. (See People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.)
Appellant 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.)
DISPOSITION
The judgment is affirmed.
The petition and amended petition for writ of habeas corpus has been read and considered and is denied for failure to state sufficient facts demonstrating entitlement to the relief requested. (See People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
We concur: WILLHITE, J., MANELLA, J.