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People v. Luna

Court of Appeal of California
Apr 23, 2009
C060239 (Cal. Ct. App. Apr. 23, 2009)

Opinion

C060239.

4-23-2009

THE PEOPLE, Plaintiff and Respondent, v. DONALD BRUCE LUNA, Defendant and Appellant.

Not to be Published


According to the stipulated factual basis at a preliminary hearing, Danny White admitted stealing spools of copper wire from a utility company in a heavy snowfall in the early morning hours of March 14, 2006. However, he refused to confirm that anyone was with him (although he acknowledged that defendant Donald Luna was an old friend). The investigating officer, who saw the hole in the fence and two sets of footprints in the fallen snow, interviewed the defendant at the invitation of his parole officer a week later. The defendant admitted he had been acting as a lookout for White, waiting at their vehicle until the he returned with the spools of wire.

The September 2007 complaint charged the defendant with grand theft and receipt of stolen property. It further alleged that he had served three prior prison terms.

After a July 2008 preliminary hearing, a magistrate held the defendant to answer, and the prosecutor filed an information. At his arraignment, defendant entered pleas of not guilty and denied the prison term allegations.

At his next court appearance, the parties announced that they had reached a disposition in which the defendant would plead no contest to the charge of receipt of stolen property (in exchange for which the prosecution would dismiss the other charge and all prison term allegations), waive his referral to the probation department, and accept a sentence of the lower term of 16 months, which he would serve after the completion of the prison term he was then serving in Colorado.

Since he had been on parole from his Colorado prison term in a halfway house at the time of his January 2008 arrest on the present offense — at which time he had been returned to prison in Colorado for several months before his transfer to California — the parties deferred the question of his entitlement to custody credits to the next hearing.

The parties discussed the credits issue without reaching a conclusion at the subsequent hearing, deferring once again the entry of a change of plea. The trial court ultimately concluded it would not grant the defendant credit for his time in custody in California because he would have been returned to custody in Colorado for a parole violation for the present offense. It agreed to issue a certificate of probable cause on the issue, noting that there was an inadequate factual record for an appellate court to resolve the question other than the defendants various unsworn representations. The court then solicited the defendants waiver of rights and accepted his plea of no contest in which he consented to punishment without admitting guilt. (See People v. Yartz (2005) 37 Cal.4th 529, 534, fn.2.)

The court immediately sentenced him in accordance with the plea agreement, imposed the minimum restitution fine (imposing and staying the parallel parole revocation fine) and a $20 fee for court security, and directed him to submit to DNA testing. It did not award any custody credits. In accordance with its earlier remarks, the court issued a certificate of probable cause in connection with the defendants notice of appeal.

We have appointed counsel to represent the defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks us to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised the defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we have not received any communication from the defendant. Having undertaken an examination of the entire record, we do not find any arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

We concur:

RAYE, Acting P. J.

HULL, J. --------------- Notes: In the written plea form he executed on the date of this hearing, he acknowledged the "unknown consequences regarding parole custody credits in state of Colorado."


Summaries of

People v. Luna

Court of Appeal of California
Apr 23, 2009
C060239 (Cal. Ct. App. Apr. 23, 2009)
Case details for

People v. Luna

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DONALD BRUCE LUNA, Defendant and…

Court:Court of Appeal of California

Date published: Apr 23, 2009

Citations

C060239 (Cal. Ct. App. Apr. 23, 2009)