Opinion
A151352
05-10-2018
THE PEOPLE, Plaintiff and Respondent, v. LYNWOOD ALLAN KIRK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC065808A)
In an opinion filed September 11, 2014, this court affirmed defendant's conviction, following a no contest plea, of kidnapping (Pen. Code, § 207, subd. (a)) and infliction of corporeal injury on a cohabitant (§ 273.5, subd. (a)). (People v. Kirk (Sept. 11, 2014, A138871) [nonpub. opn.].) We observed in our opinion that in his opening brief, defendant asserted he was entitled to additional custody credits. In his reply brief, however, he advised that he obtained relief through a section 1237.1 motion in the trial court and therefore " '[withdrew]' " the issue even though he " '[was] not and has never been in agreement with the credits.' " (People v. Kirk, supra, A138871.)
All further statutory references are to the Penal Code unless otherwise indicated.
We take judicial on our own motion of our prior opinion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
The instant appeal is from an order denying a subsequent 1237.1 motion to correct the abstract of judgment that defendant filed in propria persona, seeking an additional 247 of actual custody credits. The motion concerns preconviction time defendant spent in custody in San Francisco, which he claims should have been accounted for in this San Mateo case.
His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief and has done so. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.
The trial court denied defendant's motion by written order, which states in pertinent part:
"This Court lacks jurisdiction to modify credits after judgment was affirmed on appeal and review denied. After a judgment has been affirmed on appeal, the trial court lacks jurisdiction to act further in a case, except to ensure that the judgment has been enforced. (People v. Maggio (1929) 96 Cal.App. 409, 411; see also People v. Langdon (1967) 250 Cal.App.2d 595.)
"In addition, court records indicate that Defendant was awarded the correct number of credits. Defendant is not entitled to credits pursuant to Penal Code § 4019 due to his kidnapping conviction, which is a violent felony pursuant to Penal Code § 667.5 (c)(14). Penal Code § 2933.1(a) clearly states that '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.' "
Thereafter, the court denied defendant's request for a Certificate of Probable Cause (CPC).
In his request for a CPC, defendant acknowledged he had appealed from his judgment of conviction and further acknowledged he had not pursued the instant claim that he is entitled to an additional 247 days of credit. Thus, said defendant, "these credits were not ever brought to [the] Appellate Courts attention" and, thus, were not "included in the Affirmation of Judgment." Defendant then maintained he could not have brought this particular issue to our attention on appeal because he had not first filed a 1237.1 motion in this regard. He accordingly maintained the trial court was in error in stating it no longer had jurisdiction. While defendant is partly correct that section 1237.1, in some cases, requires a 1237.1 motion as a prerequisite to raising a credit issue on appeal and provides that such motion can be brought after a defendant discovers a mistake in the credits (§ 1237.1), the instant case is not one these cases. A section 1237.1 motion need be brought as a prerequisite to appeal only where the sole issue raised on appeal is a credit issue. (People v. Acosta (1996) 48 Cal.App.4th 411, 420-428.) Defendant, however, in his prior appeal raised several issues and, thus, could have pursued the instant custody credit issue without a section 1237.1 motion. This also is not a case where defendant belatedly discovered the supposed custody credit error.
Defendant additionally asserted in his request for a CPC that his kidnapping conviction should have been treated as a "serious" felony, rather than a "violent" felony, for credit purposes. And in this regard, he claimed the "[p]rosecution breached its promise." This assertion appears to go to the plea agreement itself, which defendant cannot challenge absent the issuance of a CPC. (See People v. Mendez (1999) 19 Cal.4th 1084, 1095-1096, 1099-1100 [issues going to plea itself require a CPC; but also recognizing a credit issue can be simply a postplea, noncertificate issue].) In any case, as the trial court observed, section 2933.1 provides that: "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." (§ 2933.1, subd. (a).) And, kidnapping is a felony offense listed in section 667.5, subdivision (c). (§ 667.5, subd. (c)(14).) Accordingly, regardless of the terminology otherwise employed during defendant's plea proceedings, defendant's kidnapping conviction comes within section 2933.1's plain terms. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1184.)
DISPOSITION
Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the judgment.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.