Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA034639, Steven D. Ogden, Judge.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
PERLUSS, P. J.
On March 6, 2006 Larry Dean Lasslett was charged by felony complaint with three counts of second degree burglary (Pen. Code, § 459) and three counts of forgery (§ 470, subd. (d)).
Statutory references are to the Penal Code.
On April 24, 2006 Lasslett waived his constitutional rights to a preliminary hearing and a jury trial and, against defense counsel’s advice, entered an open plea of no contest to one count of second degree burglary and two counts of forgery. Lasslett entered his plea with the understanding he would return to court at a later date and be sentenced to two years in state prison. He also understood, if he did not return, he would be sentenced to the maximum aggregate sentence, four years four months.
The trial court found the plea was freely and voluntarily entered, and there was a factual basis for the plea. Defense counsel did not join in the plea. On the court’s own motion, it deferred until the sentencing hearing dismissal of the remaining counts in furtherance of justice (§ 1385). The court took a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5 [defendant fully advised of his or her rights under § 1192.5 precluding sentence on plea to punishment more severe than specified in plea agreement may waive those rights]), and Lasslett waived time for sentencing until May 22, 2006.
According to the probation report, nothwithstanding the parties’ understanding at the time of the plea, Lasslett was never released from custody; he was held on a bench warrant issued on February 21, 2006 in a pending Inyo County case.
When Lasslett failed to appear in court on May 22, 2006, defense counsel explained that Lasslett had been taken into custody on the Inyo County case. A bench warrant was issued.
On April 10, 2007 the trial court issued a removal order for Lasslett’s appearance at a sentencing hearing on May 8, 2007. On that date, the court exercised its discretion to designate the two forgery convictions as misdemeanor offenses (§ 17, subd. (b)(5)) and imposed concurrent terms of 180 days in county jail, with credit for time served. On Lasslett’s remaining (felony) conviction for second degree burglary, the court imposed the middle term of two years, which Lasslett was to serve concurrently with any state prison sentence he was already serving. Lasslett received presentence custody credit of 524 days (350 actual days and 174 days of conduct credit). The court ordered Lasslett to pay a $20 security assessment, a $400 restitution fine and a $34 crime prevention fine, including penalty assessments. A parole revocation fine was imposed and suspended pursuant to section 1202.45. The remaining counts were dismissed in furtherance of justice.
At the sentencing hearing Lasslett claimed to have been committed to state prison in the Inyo County case on May 18, 2006 and to have made a written demand at some point on the district attorney for sentencing in the present case within 90 days of his demand (§ 1381). The deputy district attorney told the trial court that Lasslett’s demand was “not in [Lasslett’s] file”; it apparently had not been received. Lasslett acknowledged he was mainly concerned that his anticipated release from state prison on the Inyo County case would now be delayed by his sentence in the present case. The court indicated that Lasslett’s release date would probably not be affected under the circumstances.
Section 1381 provides: “Whenever a defendant has been convicted, in any court of this state, of the commission of a felony . . . and has entered upon a term of imprisonment in a state prison . . ., and at the time of the entry upon the term of imprisonment or commitment there is pending, in any court of this state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment or commitment and his or her desire to be brought to trial or for sentencing unless a continuance beyond the 90 days is requested or consented to by the person, in open court . . . . In the event that the defendant is not brought to trial or for sentencing within the 90 days the court in which the charge or sentencing is pending shall, on motion or suggestion of the district attorney, or of the defendant . . . or on its own motion, dismiss the action.”
Lasslett filed a timely notice of appeal and obtained a certificate of probable cause. We appointed counsel to represent Lasslett on appeal. After examination of the record counsel filed an “Opening Brief” in which no issues were raised. On October 9, 2007 we advised Lasslett he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date.
We have examined the entire record and are satisfied Lasslett’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
In his notice of appeal Lasslett argues, because he was not brought by the district attorney for sentencing in the present case within 90 days of his section 1381 demand, the case should have been dismissed. Despite Lasslett’s insistence he had made such a demand, he failed to provide the trial court with any proof at the sentencing hearing. (See People v. Gutierrez (1994) 30 Cal.App.4th 105, 111 [“[b]ecause of the drastic sanction imposed by section 1381, a prisoner must strictly comply with its conditions”].) Lasslett did not produce a copy of his demand or establish that it had been timely served on the district attorney. In the absence of any showing of compliance with the statute, Lasslett was not entitled to a dismissal of the present case. (Ibid.)
In any event, Lasslett cannot demonstrate prejudice. Indeed, the trial court went to great lengths to ensure Lasslett suffered no actual prejudice from the sentencing delay. Because Lasslett entered a plea in the present case, his only possible claim of prejudice would be “losing the opportunity to serve time concurrently.” (Gutierrez, supra, 30 Cal.App.4th at p. 112; see Boles v. Superior Court (1974) 37 Cal.App.3d 479, 484 [one purpose of § 1381 is to allow defendant the opportunity to receive concurrent sentencing from court in which earlier proceeding is pending].) However, in imposing the originally promised two-year state prison term, the trial court directed it be served concurrently with any other sentence already imposed. The trial court also reduced Lasslett’s remaining two felony convictions to misdemeanors, imposed concurrent terms of 180 days, with credit for time served. Finally, the trial court awarded Lasslett presentence
custody credit to which he was not entitled. (§ 2900.5, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178, 1193-1194; People v. Williams (1992) 10 Cal.App.4th 827, 832-833.)
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.