Opinion
C056381
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. DANIEL PAUL TERRY, Defendant and Appellant.
NOT TO BE PUBLISHED
In August, 2006, defendant Daniel Paul Terry, had been camping for about two weeks with T.S., their child L.T., age one, and T.S.s three-year-old child E.T. The childrens living conditions consisted of a camping area, a gravel parking lot, and a bathroom. There was neither power nor potable water, and the children slept with defendant and T.S. on the ground in a tent with a large rip in the side. There was very little food or water present when the campsite was investigated. In case No. CM026325, defendant entered a negotiated plea of guilty to felony child endangerment in Butte County. (Pen. Code, § 273a, subd. (a); undesignated section references are to the Penal Code).
In Sutter County, defendant had previously entered pleas of no contest to inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) in case No. CRF053028, and a plea of guilty to failing to appear (§ 1320.5) with an on bail enhancement in case No. CRF061521, receiving a five year sentence on the two charges.
In Butte County, defendant was sentenced in the Butte County case No. CM026325, and resentenced in the Sutter County cases Nos. CRF053028 and CRF061521. The court sentenced defendant to seven years and eight months: four years for the principal term, the child endangerment charge in case No. CM026325, and consecutive terms in the Sutter County cases of one year for the corporal injury count, eight months for failure to appear, and two years for the on bail enhancement. The court imposed various fines and fees and credits as follows: in case No. CM026325, 213 actual days custody in state prison, with conduct time to be determined by the Department of Corrections and Rehabilitation (CDCR), 200 days (134 actual, 66 conduct credit) in CRF053028, and no credit in CRF061521.
Defendant, who has not obtained a certificate of probable cause, appeals.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief raising five contentions, all without merit.
Defendant first claims he received ineffective assistance of counsel because he was not aware he had been charged with a count of child endangerment regarding E.W. in CM026325, who he claims is not his child. In CM026325, defendant was charged in count 2 with endangering his daughter, L.T. The other charge, count 1, charged his codefendant T.S. with endangering L.T. and E.T. E.W. was not alleged to be a victim in CM026325. His claim is therefore without merit.
Defendant next complains the trial court awarded no conduct credit in CM026325 and "CDCR Records office states -0- conduct credits were given" in that case. This is not an appealable issue. In a criminal appeal we review "a final judgment of conviction" (§ 1237, subd. (a)) and "any order made after judgment, affecting the substantial rights of the party." (Id. subd. (b).) The trial court properly deferred calculation of conduct credits for defendants time in state prison to CDCR. (§§ 2932, subd. (c); 2933, subd. (c).) CDCRs calculation of conduct credits may be appealed through the departments review procedure (§ 2933, subd. (c)), and once the administrative remedies are exhausted the prisoner may then seek judicial relief through a writ of habeas corpus. (See In re Dexter (1979) 25 Cal.3d 921, 925.) The appeal of his conviction is an inappropriate vehicle for defendant to seek judicial review of CDCRs decision.
Defendant contends he should be allowed to withdraw his plea because he was not advised his child endangerment conviction could cause the loss of his parental rights. This contention is not cognizable in the absence of a certificate of probable cause. Moreover, it fails on the merits. "In guilty plea cases the defendant must be advised of all direct consequences of conviction" that is, "primary and direct consequences involved in the criminal case itself and not to secondary, indirect or collateral consequences." (People v. Crosby (1992) 3 Cal.App.4th 1352, 1354-1355.) The effect of the guilty plea on defendants parental rights in dependency or child custody matters is a collateral consequence of which the court did not have to advise defendant.
Defendant also asserts his seven year eight month sentence violated his plea agreement, which established an upper limit of six years. The plea agreement signed by defendant in CM026325 set a maximum sentence of six years for the child endangerment offense, and the trial court sentenced him to four years for that crime. The remaining three years and eight months of the sentence comes from resentencing in the two Sutter County cases. The plea agreement stated defendant could be subjected to consecutive sentences and resentencing on the Sutter County cases was discussed in defendants presence when the trial court took his plea. As defendant was aware of the consequences of the plea, his sentence in these three cases did not violate the plea agreement.
Finally, defendant contends he was not appointed appellate counsel in time to file a timely application for a certificate of probable cause. Defendants notice of appeal was prepared by his trial counsel, who did not request a certificate of probable cause. Having reviewed the record, we conclude defendant was not prejudiced by trial counsels decision not to apply for a certificate of probable cause.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur:
NICHOLSON, J.
ROBIE, J.