People v. Mourning

Full title: THE PEOPLE, Plaintiff and Respondent, v. JEFFEREY LEE MOURNING, Defendant…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jun 5, 2020

D076976 (Cal. Ct. App. Jun. 5, 2020)

Opinion

D076976

06-05-2020

THE PEOPLE, Plaintiff and Respondent, v. JEFFEREY LEE MOURNING, Defendant and Appellant.

Jeffrey L. Mourning, in pro. per.; and Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

HUFFMAN, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD277656) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. Appellant's request for judicial notice is denied. Jeffrey L. Mourning, in pro. per.; and Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Jefferey Lee Mourning pleaded guilty to one count of felony vandalism (Pen. Code,¹ § 594, subds. (a), (b)(1)) and one count of throwing a substance at a vehicle with intent to inflict great bodily injury (Veh. Code, § 23110, subd. (b)). Mourning admitted a prison prior (§ 667.5, subd. (b)). Mourning stipulated to a four-year prison sentence, stayed pending the completion of probation. Mourning agreed to waive all local section 4019 conduct credits and serve 365 days in local custody.

1 All further statutory references are to the Penal Code unless otherwise specified.

Mourning was sentenced in accordance with the plea agreement.

Mourning's probation was revoked and he was committed to prison for a four-year term. On appeal the court recognized the prison prior, for which he had received a one-year term was no longer valid. We ordered the prior stricken and the abstract of judgment amended. The sentence imposed awarded credits for actual time in custody but did not award any section 4019 conduct credits for the time in local custody. Mourning has again appealed the judgment.².

2 Mourning has requested us to take judicial notice of correspondence between appellate counsel and the Sheriff and probation Department regarding custody credits. Such materials were never presented to the trial court. We deny the request for judicial notice.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating she has not been able to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Mourning the opportunity to file his own brief on appeal. He has responded with a supplemental brief. We will discuss Mourning's supplemental brief later in this opinion.³

3 The relevant factual background for this case is contained in our previous unpublished opinion. (People v. Mourning (Apr. 7, 2020, D075742) [nonpub. opn.].) We will not repeat that material here. --------

DISCUSSION

As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error as required by Wende. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issue she considered in evaluating the potential merits of this appeal: Whether the fines under sections 12022.4, subdivision (b), 1202.44, and/or 1202.45 must be stricken. They were announced in the original judgment but not repeated in the revocation of probation which lifted the stay of the prison term.

In his supplemental brief, Mourning contends he is entitled to more section 4019 conduct credits. He does not believe he actually waived all of the local 4019 credit as part of the plea agreement.

We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Mourning on this appeal.

DISPOSITION

The judgment is affirmed. The request for judicial notice is denied.

HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. IRION, J.