Opinion
B329798
09-24-2024
THE PEOPLE, Plaintiff and Respondent, v. TREVIN ISLAND, Defendant and Appellant.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA115524, David C. Brougham, Judge.
Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MORI, J.
Defendant Trevin Island and two co-defendants were charged with one count of first degree residential burglary and one count of attempted first degree residential burglary. (Pen. Code, §§ 459, 664/459.)
Subsequent references to statutes are to the Penal Code.
At an arraignment on October 31, 2017, defendant filed a felony advisement of rights, waiver, and plea form, and informed the court of his agreement to plead no contest to the burglary count in exchange for a two-year prison sentence. Defendant acknowledged he read the form with his counsel, discussed the nature of the charges against him, the consequence of his plea, and his constitutional rights. The trial court orally advised defendant of his constitutional rights and the consequences of his plea. Defendant orally waived his rights and affirmed he was freely and voluntarily entering his plea of no contest to one count of first degree residential burglary. Trial counsel joined in the waivers and stipulated the preliminary hearing transcript, probation report, and arrest reports provided the factual basis of defendant's plea.
The court accepted defendant's plea. Defendant was advised of section 1192.5 before giving a Cruz waiver. The court released defendant and continued sentencing to January 2018.
A Cruz waiver allows the trial court to "'withdraw its approval of the . . . plea and impose a sentence in excess of the bargained-for term'" in the event the defendant willfully fails to appear for sentencing. (People v. Scarbrough (2019) 40 Cal.App.5th 550, 552, quoting People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)
On October 21, 2019, a deputy district attorney advised the court of defendant's "demand under section 1381 of the Penal Code" that he be sentenced "in absentia under section 1389 of the Penal Code." A minute order from the same day noted defendant was "currently incarcerated and serving a sentence in the state of Arizona." The minute order also noted the issuance of a bench warrant for defendant in January 2018, the month he was previously scheduled to be sentenced. The court denied defendant's sentencing request.
Section 1381 "directs that a defendant must be brought to trial or sentencing in any pending criminal proceeding within 90 days of a request to do so and that a failure to do so requires dismissal of the action." (People v. Mahan (1980) 111 Cal.App.3d 28, 33.) This statute "applies only to persons imprisoned in a California prison." (Ibid.)
Section 1389 requires "dismissal of pending California charges against out-of-state prisoners if not resolved within the time limits specified." (People v. Gutierrez (1994) 30 Cal.App.4th 105, 108.) It also establishes a procedure for gaining control over an out-of-state prisoner to resolve an "'untried indictment, information or complaint pending in a California court.'" (People v. Lavin (2001) 88 Cal.App.4th 609, 616.) However, section 1389 does not apply to "an escaped convicted felon" awaiting an unserved prison term in California. (In re Gilchrist (1982) 134 Cal.App.3d 867, 870.) It also does not provide a defendant who pleads guilty or nolo contendere to "appeal on the ground of denial of speedy trial." (People v. Gutierrez, supra, at p. 108.)
The appellate record does not include any court filing or transcript between the October 2017 arraignment and the October 2019 hearing.
Defendant appeared in court with counsel on April 6, 2023. The court recalled the bench warrant and sentenced defendant to the agreed upon disposition of two years imprisonment for burglary and the dismissal of the attempted burglary count. The court awarded defendant custody credits. Following sentencing, defense counsel requested the court reconsider defendant's request under section 1389. The court denied the request and stated, "I'll note the defendant committed a residential burglary here. He was allowed to remain, which is unusual, out of custody with the understanding if he showed up, he would get the low term of two years. He did not show up and apparently committed a/or multiple new crimes in Arizona for which he did his time. [¶] We do not have the ability to remove him from an Arizona prison, . . . . So now he's here. After discussions with both counsel off the record, in the overall interest of justice, we will give him forthwith the original sentence, which is two years low term."
Defendant filed a notice of appeal from the judgment challenging the "denial of Penal Code § 1389 request as [he] was incarcerated in Arizona and made the demand."
After reviewing the record, defendant's court-appointed appellate counsel filed an opening brief under People v. Wende (1979) 25 Cal.3d 436, requesting an independent examination of the record. On March 15, 2024, we notified defendant and appointed counsel that defendant would have 30 days to file a supplemental brief raising any contentions or arguments he wished this court to consider. Both notices directed appointed counsel to immediately send the record and opening brief in this appeal to defendant. To date, we have received no response.
We have examined the entire record and are satisfied that no arguable issues exist, and that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278.)
DISPOSITION
The judgment is affirmed.
We concur: CURREY, P. J., COLLINS, J.