Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA076835 Steven K. Lubell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FLIER, J.
James Ellwood Day appeals from a judgment of conviction following a no contest plea to a single count of second degree robbery and his admissions of allegations that he personally used a firearm in the commission of the crime, that he suffered a prior “strike” conviction and that he suffered two prior “serious felony” convictions.
STATEMENT OF FACTS
According to the evidence presented at the preliminary hearing, in the afternoon of May 19, 2009, a man, identified at the hearing as appellant, walked into the Pacific Western Bank in Monrovia, California. He approached a bank teller and said, “I need some money.” He set his keys down on the bank counter. Then he opened his sport coat and showed the teller a gun tucked into his waistband.
Appellant told the bank teller, “don’t touch the button, ” and he handed her a white grocery bag, saying, “Give me your large.” The teller placed all the money she could access into the bag. Appellant looked at a second bank teller standing about 20 feet away and said, “You, come over here.” However, the second teller did not move, and appellant took the bag and walked out of the bank leaving his keys.
One of the keys bore a distinctive emblem for a Lincoln automobile. Monrovia police officers responding to a report of the bank robbery found a Lincoln parked about 100 yards from the bank. The car appeared to match the key. In plain view inside the Lincoln was clothing appearing to match those worn by the robber, together with an ammunition magazine for a handgun.
A check with the Department of Motor Vehicles disclosed that the Lincoln was registered to appellant. A photo of the registered owner an officer obtained resembled the photos of the robber captured by the bank’s cameras.
The Lincoln was towed to the station to be stored as evidence. In the course of taking an inventory of the vehicle’s contents, an officer found a semiautomatic handgun, an ammunition magazine for the handgun and the clothing matching that of the robber. A later search of the Lincoln pursuant to a search warrant turned up clothing matching those worn by the robber, a semiautomatic handgun, a loaded ammunition magazine for the handgun, a vehicle registration form listing appellant as owner, a mask, a plastic shopping bag and withdrawal slips.
On the day after the robbery, the bank teller picked out appellant’s photograph from a “six pack, ” noting, however, that he “did look a little bit different.” The teller indicated photographs of the robbery taken by the bank’s cameras depicted appellant as he appeared on the day of the incident.
PROCEDURAL HISTORY
A preliminary hearing took place on July 20, 2009. At the beginning of the hearing, appellant made a Marsden motion. The court conducted a confidential Marsden hearing out of the presence of the prosecutor before denying appellant’s request for a new attorney. After hearing testimony, the court found probable cause to hold appellant to answer the offenses as charged. The court later heard and denied appellant’s motion to suppress evidence pursuant to Penal Code section 1538.5.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
All further statutory references are to the Penal Code.
Following the preliminary hearing, an amended information was filed charging appellant with second degree robbery with an allegation that he personally used a firearm, second degree commercial burglary, grand theft of personal property with a personal-use-of-firearm enhancement, carrying a loaded firearm and possessing a firearm as a felon. The amended information also alleged appellant had suffered five prior “strikes” and four prior “serious felony” convictions, served time in prison for four violent felonies and failed to remain free of custody for 10 years following those prison terms.
When the matter was called for a trial, appellant waived his rights to a court or jury trial, to confrontation, subpoena and cross-examination of witnesses, and against self-incrimination, together with the right to a court or jury trial as to prior convictions. He pled no contest to a single count of second degree robbery and admitted the allegations that he personally used a firearm in the commission of the crime, he suffered a prior “strike” conviction and he suffered two prior “serious felony” convictions. The remaining counts and allegations were dismissed.
Appellant was sentenced on the same day. The court sentenced appellant to 30 years in prison, consisting of the upper term of five years, doubled by the strike, enhanced by 10 years for gun use and further enhanced by a total of 10 additional years for the “serious felony” admissions. Appellant received credit for 220 days in custody, 196 days actual custody and 24 days of “good time” credit. The minute order indicated the “good time” credit was 15 percent of the actual period in custody.
Appellant timely appealed and requested a certificate of probable cause from the court, raising issues including ineffective assistance of counsel and alleged error of the court in imposing sentence. The court granted the request and issued the certificate.
DISCUSSION
We appointed counsel to represent appellant on this appeal. After examining the record, appellant’s appointed counsel submitted a brief on appellant’s behalf raising no issues. Pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442, counsel requested that this court conduct a review of the entire record on appeal to determine whether the record reveals any issues that would, if resolved favorably to appellant, result in reversal or modification of the judgment. On August 16, 2010, we advised appellant he had the right within 30 days to submit by brief or letter any grounds of appeal contentions, or argument that he wished this court to consider. That time has passed, and appellant did not submit any brief or letter to the court raising any issues or argument.
We have examined the entire record and are satisfied that appellant’s counsel has fully complied with his responsibilities and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 279-284; People v. Wende, supra, 25 Cal.3d at p. 441; see also People v. Kelly (2006) 40 Cal.4th 106, 123-124.)
Prior to filing his brief, appointed counsel lodged with this court a copy of an informal letter he addressed to the superior court, calling its attention to a “minor clerical error” in appellant’s sentencing. Specifically, counsel indicated that appellant received custody credit of 196 actual days, with 24 days “good time” credit, and those amounts are reflected in the abstract of judgment. Counsel requested that the superior court file and forward to the Department of Corrections an amended abstract of judgment reflecting appellant in fact is entitled to receive 29 days of “good time” credit (15 percent of actual days in custody) rather than only 24 days. There is no indication the superior court entertained or ruled upon the request for relief. Accordingly, no issue can be raised in this appeal from the judgment. (§ 1237.1.) Absent other basis for appellate relief, appellant must first move for correction of the record in the trial court before he may seek relief from this court. (People v. Mendez (1999) 19 Cal.4th 1084, 1100; People v. Clavel (2002) 103 Cal.App.4th 516, 519; see People v. Fares (1993) 16 Cal.App.4th 954, 958-960.)
Section 1237.1 provides: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court....”
On our own motion we have inquired of the superior court clerk whether the superior court has entered an order correcting the abstract of judgment and were informed no such correction has been made.
DISPOSITION
The judgment is affirmed.
We concur: BIGELOW, P. J., GRIMES, J.