Opinion
H043542
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ANTHONY GARBIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS142003A)
Defendant Raymond Anthony Garbin pleaded no contest to 10 counts of identity theft (Pen. Code, § 530.5). He was sentenced to a total term in prison of six years eight months, which could be served in any penal institution. On appeal, his counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that defendant was notified that an independent review under Wende was being requested. Defendant has submitted a letter brief arguing that Proposition 47 should have reduced his felonies to misdemeanors, he is entitled to an additional 30 days of presentence credit, and he received ineffective assistance of counsel.
Unspecified statutory references are to the Penal Code.
Pursuant to Wende, we have reviewed the entire record and have concluded there are no arguable issues. We will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (People v. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to Kelly, we will consider defendant's letter brief and will explain why we reject his contentions. (Id. at p. 113.)
BACKGROUND
On November 2, 2015, defendant was charged by information with 10 counts of identity theft in violation of section 530.5, subdivision (a). The information alleged that defendant willfully and unlawfully obtained Muoi To Russell's personal information and used that information to obtain credit, goods, services, real property, and medical information without Russell's consent.
During the course of the proceedings, defendant made three separate motions under People v. Marsden (1970) 2 Cal.3d 118 seeking to have different counsel appointed. The trial court denied all three motions.
On April 1, 2016, defendant pleaded no contest to all 10 counts. The trial court sentenced defendant to the stipulated sentence of six years eight months, which could be served in any penal institution. The court granted defendant zero days of actual custody credit and zero days of conduct credit, because defendant was presently serving a prison term from another jurisdiction.
Defendant filed a timely notice of appeal and requested a certificate of probable cause, which the trial court granted.
DISCUSSION
In his letter brief, defendant raises three arguments: (1) Proposition 47 should have reduced his felony convictions for identity theft to misdemeanors, (2) he is entitled to approximately 30 additional days of credit, and (3) he received ineffective assistance of counsel.
First, defendant's claim that Proposition 47 reduces his felony convictions for identity theft (§ 530.5) to misdemeanors lacks merit. Proposition 47 made certain drug and theft related offenses misdemeanors, unless the offenses were committed by ineligible defendants. After the passage of proposition 47, certain theft-related offenses are now misdemeanors if the value of the stolen property is less than $950. However, Proposition 47 did not amend section 530.5, which criminalizes identity theft. (See § 1170.18, subds. (a) & (b), listing statutes amended or added by Proposition 47.) Thus, a violation of section 530.5 remains a wobbler, chargeable as either a felony or a misdemeanor and punishable accordingly. (§§ 530.5, 1170, subd. (h), 17.)
Some of the amended and added statutes include: sections 459.5 (shoplifting), 490.2 (petty theft), 496 (receiving stolen property), 473 (forgery), 476a (uttering a fictitious check).
Second, we are unable to address defendant's claim that he is entitled to additional credits. In his letter brief, defendant states he was arrested sometime in August 2014, was released on bail in September 2014, and was subsequently arrested for an outstanding case in Nevada. Later, the trial court granted him zero days of credits in the case, because it found he was already a sentenced prisoner in Nevada at the time of the hearing. Defendant claims the trial court erred in calculating his credits, because he should have received credits for the period of time between his arrest and his release on bail.
Defendant's counsel has acknowledged this error. In his opening brief, defendant's counsel states that he has sent a letter to the trial court seeking a correction of this oversight. This is the appropriate method to correct the error in the calculation of defendant's credits. (People v. Fares (1993) 16 Cal.App.4th 954, 958; § 1237.1 [no appeal can be taken from judgment of conviction based on miscalculation of presentence credits unless defendant first makes motion with trial court].) Raising the issue with the trial court first is of vital import in situations like the one presented here, where there are factual determinations that must be made. (People v. Wrice (1995) 38 Cal.App.4th 767, 773; § 2900.5, subd. (d) ["It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section."].) Defendant's counsel has not advised us whether the trial court has ruled upon his request for additional credits. Should the trial court deny his request for credits, defendant may appeal this order as an order after a judgment affecting the substantial rights of the party. (§ 1237, subd. (b).)
The record on appeal does not specifically set forth the date of defendant's arrest, so we are unable to determine the amount of credit defendant should have been awarded. The minute order dated August 6, 2014, reflects that a warrant of arrest was ordered issued and signed and given to the City of Marina Police Department. Two minute orders dated September 11, 2014, indicate defendant was in custody as of that date but was subsequently released on bail. --------
Lastly, we must reject defendant's claim of ineffective assistance of counsel. In his letter brief, defendant argues his trial counsel advised him not to accept a more favorable plea of "three years w/ half (with promise of a better one)." This claim, however, should be raised, if at all, in a habeas corpus proceeding. In order to succeed on a claim of ineffective assistance of counsel, defendant must show his counsel's action or inaction was not a reasonable tactical choice, and in most cases " ' " ' "the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . ." ' " ' " (People v. Jones (2003) 30 Cal.4th 1084, 1105.)
In support of his argument of ineffective assistance of counsel, defendant cites to the three Marsden motions that the trial court denied. We have independently reviewed the confidential transcripts of the Marsden hearings, and we find no arguable issue that trial counsel rendered ineffective assistance of counsel. "Judicial scrutiny of counsel's performance must be highly deferential." (Strickland v. Washington (1984) 466 U.S. 668, 689.) There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Id. at p. 690.) The benchmark for judging a claim of ineffective assistance of counsel is whether the attorney's conduct "so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." (Id. at p. 686.) "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Id. at p. 688.)
In addition to the arguments set forth by defendant in his letter brief, we have conducted an independent review of the record pursuant to Wende and Kelly. We conclude there are no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Elia, J.