Opinion
G053436
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANKIE MANUEL LAGUNA, Defendant and Appellant.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF1982) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed as modified. Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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A jury found defendant Frankie Manuel Laguna not guilty of vehicle taking as charged in count one of the information, not guilty of attempted vehicle taking which is a lesser included offense to the crime charged in count one, guilty of resisting and deterring executive Officer Bryan Nguyen as charged in count two, not guilty of resisting and deterring executive Officer Arion Knight as charged in count three, and guilty of resisting peace Officer Knight which is a lesser included offense to the crime charged in count three.
Defendant waived a probation report and made no application for probation. On the morning of the sentencing hearing, the trial court received a letter from defendant, which the defense requested the court read and which the court read and paraphrased: "It says, forgive me, basically, I've had a drug problem all my life. I'm looking for an alternative other than prison." Defendant admitted he had previously committed two serious or violent crimes in violation of Penal Code sections 664, 211, 212.5, subdivision (b), and 245, subdivision (a)(2).
At the sentencing hearing, defense counsel suggested it might be within the court's discretion to grant probation, even absent a probation report. The court responded to the suggestion: "I'm not going to find unusual circumstances. He's foreclosed me from doing that. So I just wanted to be clear because that leads to other places you folks want to go or things you want to say. I thought it would be unfair not to tell you. I'm not saying I would do otherwise if I had a full and complete probation report. I don't know." The court sentenced defendant to four years in prison.
Prior to the preliminary hearing, defendant made a "Marsden request." The general rule respecting a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, is that when the defendant requests the discharge of appointed counsel, he has the right to a hearing to express his grievances with his attorney. In the present case, the court held a closed hearing. Present were the judge, defendant, defense counsel and court personnel. The court discussed each of defendant's grievances with him, asked him questions and patiently discussed each issue with him. The court denied the motion and proceeded with the preliminary hearing.
At trial, the manager of a car wash testified he saw defendant in the driver's seat of a vehicle that was going through the car wash. Defendant was not the person who dropped off the car to be washed. Defendant "start[ed] the car" and "tried to move the car." The manager put down the security gate at the end of the car wash, preventing the car from leaving the car wash tunnel. The manager went to defendant and asked him what he was doing, but defendant said nothing, put the car in park, tried to punch the manager and walked off.
Officer Nguyen was dispatched to the car wash. When he saw defendant, he ordered him to raise his hands and get on his knees. Defendant started "slowly walking backwards, and then started running away. Defendant was unsuccessful in trying to pull himself over a barbed wire fence.
Officer Knight got to defendant first and Officer Nguyen heard the sound of a taser. Officer Nguyen described what he saw: "So when I hear the taser deployment, the—Officer Knight and the suspect are actually behind a vehicle. That's why I didn't actually see the taser deployment. So immediately after, I see the suspect run around the vehicle towards me with the taser wires trailing. [¶] . . . [¶] Immediately after that, he runs right at me. He kind of lowers his head, puts his arms like this, which is what I recognized, based on my training and experience, as a tackling or an attacking stance." Officer Knight was able to get defendant on the ground at that point. It took a little while after that to get defendant under control. Officer Nguyen had a one-inch bruise "from when he came and tried to tackle me." He also sustained "a little laceration" to his finger.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument in defendant's own behalf. That period has passed, and we have received no communication from defendant.
This court requested letter briefs on the following issue: Did the trial court err in granting custody and/or conduct credits to appellant? Both sides agree the trial court erred in awarding credits, and both agree the abstract of judgment should be amended to state the correct numbers, 202 days of actual custody credit and 202 days presentence custody credit for a total of 404 days. We also agree.
The matter is remanded to the superior court and the clerk of the court is directed to prepare an amended abstract of judgment reflecting these modifications and forward a certified copy to the Department of Corrections and Rehabilitation. The correct abstract of judgment should state 202 days of actual custody credit and 202 days of presentence custody credit, totaling 404 days of credits. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) We have examined the record and found no other arguable issue. (People v. Wende (1979) 25 Cal.3d 436.)
The judgment is affirmed as modified.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.