Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA063900. Francis J. Hourigan III, Judge. Modified and Affirmed.
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MOSK, J.
Defendant and appellant Tyrone Brown pleaded guilty to one count of residential robbery and was sentenced to 22 years in prison. On appeal, defendant argues that his sentence is unconstitutional and that the trial court abused its discretion. We modify defendant’s sentence to correct the calculation of his presentence custody credit. We otherwise affirm.
BACKGROUND
On January 17, 2006, Sivakumar Vellakkalpatti returned to his Torrance home at approximately 11:00 p.m. He discovered that DVDs, VHS cassettes, laptop computers and video games were missing, along with a piece of luggage that contained his passport, green card and social security card. He also discovered that money in foreign currency was missing. Some of Vellakkalpatti’s property, including the foreign currency and the luggage containing Vellakkalpatti’s passport, was recovered by the Torrance police from defendant’s apartment. Other items belonging to Vellakkalpatti were recovered by police from defendant’s garage.
The facts relating to defendant’s crime are derived from the transcript of his preliminary hearing.
Defendant was charged in a five-count information alleging that defendant had burglarized Vellakkalpatti’s and two other homes (Pen. Code, § 459), had attempted to burglarize a fourth home (§§ 664, 459), and had received or concealed a stolen iPod (§ 496, subd. (a)). The information also alleged that defendant had three prior “strike” convictions (§§ 667, subds. (b)-(1); 1170.12, subds. (a)-(d)), three prior serious felonies (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code
Pursuant to a negotiated disposition, defendant pleaded guilty to the first degree burglary (§§ 459; 460, subd. (a)) of Vellakkalpatti’s home. The other four counts were dismissed. Defendant admitted one prior strike conviction and two prior serious felonies; allegations of two more prior strike convictions and other enhancements were dismissed. Defendant also agreed to make restitution to his victims.
Prior to agreeing to the disposition, defendant sought to discharge his court-appointed attorney and represent himself. The trial court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 and denied defendant’s request. Defendant has not raised any issues relating to the Marsden hearing in his supplemental brief, and our independent review of the transcript reveals no arguable claim of error.
The trial court sentenced defendant to 22 years in state prison, consisting of the upper term of six years on his burglary conviction (§ 461), doubled due to defendant’s prior strike, plus five years each for the two prior serious-felony enhancements. Defendant was given 159 days of credit toward his sentence, comprised of 107 days of actual custody plus 52 days of conduct credit. (§ 4019.) The trial court ordered defendant to pay a $20 court security assessment (§ 1465.8, subd. (a)(1)); a $200 restitution fine (§ 1202.4, subd. (b)(1)); a $200 parole revocation restitution fine, stayed unless defendant fails successfully to complete his parole (§ 1202.45); and, after a restitution hearing, $2,640 in restitution (§ 1202.4, subd. (f)).
This court granted defendant relief from his failure timely to file a notice of appeal. The trial court granted defendant’s request for a certificate of probable cause.
DISCUSSION
A. Defendant’s Claims of Error
We appointed counsel to represent defendant on this appeal. After examining the record, appointed counsel filed an opening brief requesting this court to review the record independently in accordance with People v. Wende (1979) 25 Cal.3d 436. On April 16, 2007, we gave notice to defendant that his appointed counsel had not found any arguable issues, and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wanted this court to consider. Defendant submitted a supplemental brief dated April 17, 2007 in response to that notice, which this court received and filed on April 30, 2007. Defendant asks this court to consider three issues.
Defendant contends that his trial counsel rendered ineffective assistance because she failed to apprise him of his Sixth Amendment right to have a jury make factual determinations used to support his upper-term sentence, pursuant to the United States Supreme Court’s decisions in Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856, Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466. The record on appeal, however, contains no information regarding what advice, if any, trial counsel gave defendant regarding his Sixth Amendment rights; it would be unusual and inadvisable for a lawyer to conduct such attorney-client privileged conversations on the record. “A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence . . . .” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Accordingly, “defendant’s assertion that [trial counsel] rendered ineffective assistance of counsel . . . must properly await resolution on a fully developed factual record in a habeas corpus proceeding.” (People v. Snow (2003) 30 Cal.4th 43, 118.)
Defendant further contends that the trial court’s imposition of an upper-term sentence was unconstitutional under Cunningham v. California, supra, __ U.S. __, 127 S.Ct. 856. Defendant, however, effected a written waiver of rights, including his right to a jury trial, that specifically stated that defendant would be sentenced to a 22-year term in state prison that included a 6-year upper term doubled to 12 years. The trial court informed defendant and his counsel, prior to taking defendant’s plea, that defendant would be sentenced “to a high term of six years . . . and that term would be doubled.” Defendant acknowledged his execution of the written waiver, and again waived his right to a jury trial, orally on the record. By accepting the plea agreement, defendant obtained the dismissal of four felony counts and two prior strike allegations that might have exposed him to sentencing on multiple felony counts as a third-strike offender. By accepting the negotiated sentence and waiving his right to a jury trial, defendant waived any claim that imposition of the upper-term sentence was improper. “[A]s the Supreme Court expressly recognized in Blakely, a defendant entering into a plea agreement may waive his right to a jury trial on additional facts used to impose an enhanced sentence. ‘When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. [Citations.]’ (Blakely, supra, 542 U.S. at p. 310 [159 L.Ed.2d at pp. 417-418].” (People v. Munoz (2007) 155 Cal.App.4th 160, 166; see also People v. Shelton (2006) 37 Cal.4th 759, 768 [“specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term”].)
Finally, defendant argues that the trial court abused its discretion by refusing defendant’s request for diversion and deferred entry of judgment, pursuant to sections 1000-1000.8. Defendant, however, was sentenced upon a negotiated disposition; there is no indication in the record that the prosecutor agreed to dispose of defendant’s case under section 1000 or determined that defendant was eligible for diversion. (See People v. Sturiale (2000) 82 Cal.App.4th 1308, 1313-1314.) In any event, defendant pleaded guilty to burglary in the first degree (§§ 459; 460, subd. (a)), which is not among the offenses to which section 1000—which concerns narcotics offenses—applies. Defendant thus was ineligible for diversion and deferred entry of judgment under sections 1000-1000.8.
We have independently reviewed the record, and we are satisfied that defendant’s appointed appellate counsel fulfilled her responsibilities, and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
B. Presentence Credit
The trial court gave defendant 159 days of presentence custody credit. This was erroneous. Defendant was arrested on January 19, 2006 and sentenced on May 4, 2006. Defendant thus spent 106 days in custody, including the dates of his arrest and sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526-527.) Defendant was entitled to 52 days of conduct credit. (Id. at 527; § 4019.) Defendant was therefore entitled to a total of 158 days of presentence custody credit, not 159 days.
DISPOSITION
The judgment is modified to reflect that defendant was entitled to 158 days of credit for time spent in custody. A corrected abstract of judgment is to be forwarded to the Department of Corrections and Rehabilitation by the superior court clerk. The judgment is affirmed in all other respects.
We concur: TURNER, P. J., KRIEGLER, J.