Opinion
C091926
03-08-2021
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ANTHONY MAQUINALES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CH037063)
The People's June 7, 2019, complaint charged defendant Richard Anthony Maquinales with custodial possession of a weapon (Pen. Code, § 4502, subd. (a)) and alleged defendant had two prior strikes.
Undesignated statutory references are to the Penal Code.
Thereafter, on October 31, 2019, the parties reached an agreement that defendant would plead no contest to the possession charge, the People would dismiss the strike allegations, and defendant would serve either the low term of two years or one year if the matter could be sentenced consecutively to defendant's prior cases. Defendant would have the option of withdrawing his plea if defendant was found ineligible for the one-year term. The court accepted this agreement, defendant pled no contest, and the court dismissed the enhancements at the People's request.
Defendant paroled on the prison term he was previously serving on October 19, 2019. --------
Defendant's presentencing memoranda argued he must be sentenced to one-third the midterm (here one year) because consecutive sentencing of the section 4502, subdivision (a) offense was required by section 1170.1, subdivision (c). The People conceded the correctness of this position, and on November 15, 2019, the trial court sentenced defendant to the previously imposed terms of two years plus two years concurrent for prior cases, plus one year consecutive for the new offense. Defendant was awarded 28 days of actual credit plus 28 days of conduct credit for a total of 56 days of custody credit. The court also imposed a $300 restitution fine, a $300 suspended parole revocation restitution fine, and waived the court operations and conviction fees "in the interest of justice."
On January 6, 2020, the trial court received a letter from the California Department of Corrections and Rehabilitation (Department) advising the trial court it had entered an invalid sentence. The Department reasoned that because defendant was paroled on October 19, 2019, the trial court was not authorized, on November 15, 2019, to sentence defendant to one-third the midterm in addition to the terms for which he had been paroled. Rather, defendant should have been sentenced to a full term without reference to the previous cases. In response, the court reappointed defendant's attorney and set the matter for a hearing on February 28, 2020.
On February 28, 2020, the parties announced that they had reached a new agreement in the spirit of the original deal. Defendant would be allowed to withdraw his plea, the People would amend the complaint to reflect a violation of section 4502, subdivision (b), defendant would plead no contest to that charge, the enhancements would again be dismissed, and defendant would be sentenced to the lower term of 16 months. The court accepted this new plea and resentenced defendant accordingly, including ordering the fines and fees as previously imposed.
Defendant timely appealed and his request for a certificate of probable cause was denied. Defendant's appellate counsel moved for the trial court to clarify his presentence custody credits, which was set for a hearing on July 13, 2020. The results of this hearing are not part of the record on appeal.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find no errors that would result in a disposition more favorable to defendant. Accordingly, we will affirm the judgment.
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Murray, J.