Opinion
C100581
10-18-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE BARNES, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. CRF23-01755
HULL, Acting P. J.Appointed counsel for defendant Daniel Lee Barnes asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
In July 2023, defendant was arrested pursuant to a warrant. During his arrest, police searched his car and found a baggie containing an ounce of cocaine.
In case No. CRF23-01755 (case No. 1755) defendant was charged with felony possession for sale of a controlled substance (Health &Saf. Code, § 11351; count I); misdemeanor possession of a controlled substance (Health &Saf. Code, § 11377, subd. (a); count II); and misdemeanor possession of a smoking device (Health &Saf. Code, § 11364, subd. (a); count III).
In July 2023, defendant pleaded no contest to count I in case No. 1755. Defendant also pleaded no contest in case No. CRF23-1392 (case No. 1392) to possession of tear gas by a narcotic addict. (Pen. Code, § 22810, subd. (b).) Defendant agreed to a Cruz waiver and stipulated to a four-year, eight-month aggregate sentence if he violated the terms of his release, as follows: the upper term of four years for count I in case No. 1755 plus eight months consecutive (or one-third of the middle term) for the section 22810 charge in case No. 1392. The parties also agreed the remaining charges would be dismissed.
Undesignated statutory references are to the Penal Code.
People v. Cruz (1988) 44 Cal.3d 1247.
Between September 20, 2023, through October 9, 2023, defendant missed three court dates due to a medical issue requiring hospitalization. Defendant was remanded to custody on October 20, 2023.
On October 23, 2023, defendant admitted he violated the terms of his Cruz waiver by committing a new misdemeanor. The court sentenced defendant to state prison for an aggregate term of four years and eight months, as follows: the upper term of four years on count I in case No. 1755 plus eight months consecutive (one-third of the middle term) for the section 22810 charge in case No. CRF23-1392. The court dismissed the remaining charges, including the new misdemeanor. The court also imposed a $600 restitution fine (§ 1202.4), a corresponding $600 parole revocation fine (suspended unless parole is revoked) (§ 1202.45), an $80 court operations fee (§ 1465.8, subd. (a)(1)), and a $60 criminal conviction assessment fee (Gov. Code, § 70373). The court awarded 37 days of custody credit (19 days of actual credit and 18 days of conduct credit).
In December 2023, a Correctional Case Records Manager from the Department of Corrections and Rehabilitation notified the trial court that defendant had been sentenced to state prison, but, pursuant to Assembly Bill No. 109 (Stats. 2011-2012, ch. 15, § 152), defendant was ineligible for state prison and instead met the criteria to serve the commitment in a county jail facility. (See Health &Saf. Code, § 11351.)
In January 2024, the trial court recalled the sentence. The prosecutor asked the court to sentence defendant to local prison, and, because the tear gas possession charge in case No. 1327 was now considered to be a misdemeanor, to reduce that term to a concurrent misdemeanor sentence. Defendant asked to be returned to state prison, but the court denied defendant's request because he qualified for county jail.
The court resentenced defendant to county jail for an aggregate term of four years, as follows: the upper term of four years on count I in case No. 1755 and six months concurrent for the section 22810 charge in case No. 1392. The court also imposed a $300 restitution fine in case No. 1755 (§ 1202.4), a $150 restitution fine in case No. 1327 (§ 1202.4), an $80 court operations fee (§ 1465.8, subd. (a)(1)), and a $60 criminal conviction assessment fee (Gov. Code, § 70373). The court awarded 220 days of custody credit (110 days of actual credit plus 110 days of conduct credit).
Defendant appealed in case No. 1755 and did not obtain a certificate of probable cause on appeal.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: FEINBERG, J. WISEMAN, J. [*]
[*]Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.