From Casetext: Smarter Legal Research

People v. Ackerman

California Court of Appeals, Fourth District, Third Division
Apr 27, 2009
No. G041142 (Cal. Ct. App. Apr. 27, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 08CF0845, John Conley, Judge.

John Ford Ackerman, in pro. per.; and Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.


OPINION

RYLAARSDAM, J.

Defendant John Ford Ackerman pleaded guilty to petty theft with a prior theft conviction (Pen. Code, § 666; all further statutory references are to this code) and admitted two prior prison allegations (§ 667.5, subd. (b)). Pursuant to the plea agreement, the court struck the prior prison term allegations and imposed the low term of 16 months. The court issued a certificate of probable cause. In the plea defendant admitted he took property from a Target store on June 21, 2007, after having previously been convicted of theft offenses.

We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. He did not argue against his client, but advised the court no issues were found to argue on defendant’s behalf. Counsel requested we conduct an independent review of the entire record. (People v. Wende (1979) 25 Cal.3d 436, 441.) Defendant was given the opportunity to file written argument on his own behalf, and he did so. We have reviewed defendant’s arguments and conclude none of them are arguable. Our independent review of the record disclosed no arguable issue. We therefore affirm the judgment.

1. Allegation of Duress

Defendant first argues that he entered his plea under duress. But there is nothing in the record to support this contention. The sentencing judge clearly and carefully explained all aspects of the sentencing process and its consequences and defendant stated unequivocally that he fully understood each of these. Defendant was given adequate opportunity to address the court. There is no indication that defendant entered his plea other than freely.

2. Alleged Violation of Rights Under Section 1381

Defendant’s major argument is that he was denied his rights under section 1381. That section provides in relevant part that, when a defendant “has entered upon a term of imprisonment,” and, if “at the time of the entry upon the term of imprisonment ... there is pending, in any court of the state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment... and his or her desire to be brought to trial or for sentencing.... In the event that the defendant is not brought to trial or for sentencing within the 90 days the court in which the charge or sentencing is pending shall... dismiss the action.”

Defendant was arrested for the subject crime on June 21, 2007. He was subsequently incarcerated on other charges and apparently wrote the Orange County District Attorney demanding a resolution of the case under section 1381. The record does not contain a copy of this request but among the documents supplied by defendant is a copy of a letter from the office of the Orange County District Attorney, dated August 9, 2007, acknowledging receipt of such a letter. This response states “[w]e have determined that you currently have no active warrants or open cases in Orange County. As a result, our office will take no further action in the matter.”

The statement was correct. Although defendant had been cited to appear on a misdemeanor citation, the record is silent as to the disposition of any misdemeanors. Instead, the office of the district attorney filed a felony complaint on March 13, 2008. Thus, when defendant attempted to exercise his rights under section 1381, the present felony complaint was not “pending.” Hence, he had no rights to have this matter determined when he made his demand under section 1381.

3. Motion to Dismiss

Defendant also filed a “motion to dismiss pursuant to California Penal Code 1487.2, 3, 7.” These references are to proceedings under a petition for writ of habeas corpus. No such petition has been filed.

4. No Other Arguable Issue

In our independent review of the record we have not found any other arguable issue.

DISPOSITION

The motion to dismiss is denied. The judgment is affirmed.

WE CONCUR: SILLS, P. J., O’LEARY, J.


Summaries of

People v. Ackerman

California Court of Appeals, Fourth District, Third Division
Apr 27, 2009
No. G041142 (Cal. Ct. App. Apr. 27, 2009)
Case details for

People v. Ackerman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN FORD ACKERMAN, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 27, 2009

Citations

No. G041142 (Cal. Ct. App. Apr. 27, 2009)