Opinion
B230799
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. SEAN LAVELLE LOWERY, Defendant and Appellant.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA049066)
APPEAL from an order of the Superior Court of Los Angeles County, Christopher Estes and Charles A. Chung, Judges. Affirmed.
Joy A. Maulitz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant Sean Lavelle Lowery appeals from the postjudgment order revoking probation and imposing a previously suspended three-year state prison sentence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 7, 2010, defendant punched his girlfriend, Cia Lewis, in the face. The couple had two children together.
On May 24, 2010, represented by appointed counsel, defendant entered a no contest plea, orally and in writing, to committing corporal injury to a spouse/cohabitant/child's parent. (Pen. Code, § 273.5, subd. (a)). Defendant's signed felony advisement of rights, waiver, and plea form indicated that imposition of the middle three-year term sentence was to be suspended and that defendant would be placed on five years of formal probation. During the plea hearing, the trial court stated at one point, "In addition, your sentence will be called three years' state prison suspended. That means if you violate probation, the court has only one alternative and that's to send you to prison for two years." The trial court went on to find the plea had been freely and voluntarily entered, and there was a factual basis for the plea.
On June 17, 2010, without objection, the court sentenced defendant to a three-year term in state prison, suspended imposition of sentence and placed him on five years of formal probation. Defendant was ordered to report to the probation department within 48 hours of his release from custody.
On October 22, 2010, defendant's probation was summarily revoked and a bench warrant was issued for his arrest after the trial court was informed that defendant had failed to report to the probation department as ordered. At the probation violation hearing on December 6, 2010, the trial court advised defendant, "If you admit you are in violation of probation, I would sentence you to three years state prison. . . . [¶] Is that what you want to do?" Defendant replied, "Yes, as long as it's not three years flat." The trial court explained, "I will sentence you to three years state prison. You can earn 50 percent good time/work time credits. That's between you and C.D.C. [¶] . . . [¶] I have no control over that. Okay?" Defendant answered, "All right." Defendant then waived his rights to a probation violation hearing and admitted that he had violated probation by failing to report to the probation department as ordered.
The trial court imposed the previously suspended sentence of three years in state prison. Defendant received presentence custody credit of 70 days (51 actual days and 18 days of conduct credit). The court ordered defendant to pay a $400 domestic violence fund fine, a $30 security assessment, a $30 criminal assessment and a $200 restitution fine. The court imposed and stayed a parole revocation fine pursuant to section 1202.45.
Defendant timely appealed from the postjudgment order of December 6, 2010. In his notice of appeal, defendant checked the box, "other basis for this appeal," and indicated in his request for a certificate of probable cause that his defense counsel rendered ineffective assistance. Specifically, defendant asserted that his defense counsel had erroneously assured him that he would only "do 11 months" in state prison. The trial court granted defendant's request for a certificate of probable cause. We appointed counsel to represent him on appeal.
DISCUSSION
After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436.
On July 21, 2011, we advised defendant that he had 30 days within which to submit personally by brief or letter any grounds of appeal, contentions or arguments he wanted us to consider. On August 5, 2011, defendant filed a handwritten supplemental brief, in which he pointed to the transcript of the May 24, 2010 plea hearing and argued, "According to the plea agreement, it was understood that if I violate the imposed probation I would be sent to state prison for two years not three years."
To the extent defendant is attempting to challenge either his May 24, 2010 plea or his June 17, 2010 sentence based on ineffective assistance, this assertion is appropriately decided in a habeas corpus proceeding where all relevant facts can be developed. (People v. Avena (1996) 13 Cal.4th 394, 419.). In any event, defendant's claim that the length of the suspended state prison sentence under the plea agreement was two rather than three years is without merit. The bench officer at the plea hearing obviously misspoke in referring to the length of defendant's suspended state prison sentence. Defendant's signed felony advisement of rights, waiver, and plea form and the transcripts of the sentencing and probation revocation hearings all show a suspended sentence of three years and defendant's understanding and acceptance of that sentence. Finally, to the extent defendant is claiming defense counsel rendered ineffective assistance at the probation revocation hearing, the record on appeal fails to support that claim. (Strickland v. Washington (1984) 466 U.S. 668, 686, 689-690 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
We have examined the entire record and are satisfied defendant's attorney has complied fully with the responsibilities of counsel. 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, 112-113; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order is affirmed.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.