Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. MA039165, Hayden Zacky, Judge.
Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ROTHSCHILD, J.
An information charged Lancelott Green with (1) attempted murder (Pen. Code, §§ 664/187, subd. (a)), (2) assault with a semiautomatic firearm (§ 245, subd. (b)), (3) burglary of an occupied residence (§ 459), (4) dissuading a witness (§ 136.1, subd. (b)(1)), and (5) making criminal threats (§ 422). The information alleged that in the commission of these offenses Green personally used and discharged a firearm (§§ 12022.53, subds. (b) & (c), 12022.5, subd. (a)) and that he had previously been convicted of two serious or violent felonies. (§§ 1170.12, subds. (a) – (d), 667, subds. (b) – (i)).
Further unmarked statutory references are to the Penal Code.
Green pled not guilty and denied the allegations. Jury trial began on September 25, 2007.
Deborah Bennett testified that she had an on again, off again, relationship with Green. On January 8, 2007 Green went out with friends and Preston Simmons was visiting Bennett in her apartment. Green unexpectedly appeared, and the men began to argue and fight. As they were shouting at each other Bennett heard a gunshot. Green then left the apartment and Bennett called 911 for police assistance.
During what was apparently the second day of Bennett’s testimony, Green accepted the prosecutor’s offer of a sentence of five years and eight months in state prison if Green pleaded guilty to two of the counts and admitted personal use of a firearm.
Green waived his constitutional rights and pleaded no contest to dissuading a witness from reporting a crime as alleged in count four (§ 136.1, subd. (b)(1)) and of making a criminal threat as alleged in count five (§ 422). In connection with count four, Green admitted that he personally used a firearm in the commission of the offense. (§ 12022.5, subd. (a).) Defense counsel concurred in the pleas and admission and stipulated to a factual basis for both. The court found Green intelligently, voluntarily, and knowingly waived his constitutional rights and that there was a factual basis for the pleas. The court sentenced Green to the agreed term of five years and eight months in state prison, and dismissed the remaining counts and allegations pursuant to the plea negotiations. The court imposed a $20 security fee (§ 1465.8) and a $1,000 restitution fine (§ 1202.4, subd. (b). The court imposed and suspended a $1,000 parole revocation fine (§ 1202.45) and directed Green to provide a palm print and a DNA sample (§§ 296, 296.1).
Green timely filed a notice of appeal, stating that he was challenging the limitation attached to his sentence allowing him to receive no more than 15 percent “good time” or “work time” credit. Green sought, but did not receive, a certificate of probable cause. (Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(1).) We appointed counsel to represent Green on appeal. After an examination of the record, counsel filed an opening brief in which counsel raised no issues. On October 27, 2008, we advised Green he had 30 days within which to personally submit any contentions or issues he wished us to consider. Green has not responded.
We have examined the entire record and are satisfied that Green’s counsel has fully complied with the responsibilities of counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-278; People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.)
A criminal defendant who appeals following a plea of no contest or guilty without a certificate of probable cause can only challenge the denial of a motion to suppress evidence or raise grounds arising after the entry of the plea that do not affect its validity. (Cal. Rules of Court, rule 8.304(b).) Because Green is not challenging the validity of his plea but only the requirement of credit limitations on his sentence his appeal is proper. Nonetheless, on the merits we reject his challenge.
Section 2933.1, subdivision (a) specifies that a person convicted of a “violent felony,” as defined in section 667.5, subdivision (c), may not accrue more than 15 percent work time credit of his actual time in custody. Subdivision (c) of section 2933.1 similarly limits presentence “good time” conduct credits for persons convicted of violent felonies who are sentenced to state prison. (See People v. Daniels (2003) 106 Cal.App.4th 736, 740 [“Section 2933.1(c) limits the maximum conduct credits that can be awarded to a defendant convicted of a section 667.5 felony to 15 percent of his or her actual time in custody”].)
Section 2933.1, subdivision (a) provides, “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.”
Section 2933.1, subdivision (c) provides, “Notwithstanding Section 4019 [computation of good behavior time credit] or any other provision of law, the maximum credit that may be earned against a period of confinement in, . . . jail . . . and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a) [persons convicted of a violent felony listed in section 667.5, subdivision (c)].”
The statutory definition of a “violent felony” includes the commission of “any felony” in which the “defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section . . . 12022.5[.]” (§ 667.5, subd. (c)(8).) Thus the factual circumstances of the present case satisfy the requirements for application of section 2933.1. Green pled no contest to the felony offense of dissuading a witness and admitted that he personally used a firearm in the commission of the offense within the meaning of section 12022.5, subdivision (a). Accordingly, Green’s crimes fall within the statutory definition of being a “violent felony” and Green is subject to both the “work time” and “good time” credit limitations of section 2933.1.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J. WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
At the time of sentencing in this case, prison time credit for good behavior was not available to any prisoner whose crime was committed on or after January 1, 1983. (§ 2931, subd. (d).) With the initiative measure passed by the voters on November 4, 2008, (Prop. 5, § 19) prison time credits for “good behavior” were again made available to certain prisoners, but not to prisoners “convicted of a serious or violent felony within the meaning of Section 667.5 or 1192.7[.]” (§ 2933, subd. (b).)