Opinion
A146471
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. ALVIN LEE WINGO, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR140252)
On December 15, 2014, appellant Alvin Lee Wingo, Jr., pled guilty to making available for use a space for the purpose of unlawfully manufacturing, storing or distributing any controlled substance for sale or distribution (Health & Saf. Code, § 11366.5, subd. (a)), with personal use of a firearm. (Pen. Code, § 12022, subd. (c).) As part of the agreement, custody credits were applied not to the present offense, for which he received zero credit, but to the sentence imposed on appellant after revocation of postrelease community supervision (PRCS).
After October 1, 2011, California Department of Corrections and Rehabilitation no longer had jurisdiction over certain nonviolent offenders on parole who are now supervised instead by an agency designated by the county. (Pen. Code, §§ 3450-3456.) Such nonviolent offenders shall not be returned to state prison on a parole revocation except for life term offenders paroled pursuant to Penal Code section 3000.1. (Pen. Code, § 3056.) --------
Approximately eight months later, on August 15, 2015, appellant moved to amend the abstract of judgment in the present case to include the 116 days of credit for time served that was applied to his sentence after revocation of PCRS. The motion was denied three days later. Appellant timely filed a notice of appeal from the denial of the conduct credits and the sentence.
Appellant's court-appointed counsel has filed a brief raising no legal issues and asking this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel represents that he has advised appellant of his right to relieve present counsel and his right to file a supplemental brief in propria persona, and that if he wishes to file such a brief counsel will provide him the appellant record. Appellant has not elected to file a supplemental brief.
Proceedings Below and Facts
Appellant was on November 14, 2014, originally charged in this case with seven counts: two counts of the offense to which he subsequently plead guilty and also three counts of possession of controlled substances while armed (Health & Saf. Code, § 11370.1, subd. (a)); possession of methamphetamine for sale with a firearm enhancement (Health & Saf. Code, § 113278; Pen. Code, § 12022); and possession of marijuana for sale. (Pen. Code, § 11359.) The information also alleged one prior strike and four prior offenses for which appellant served prison terms. (Pen. Code, §§ 667, 667.5.)
During the preliminary hearing, at which the court also ruled on appellant's motion to suppress, the district attorney presented evidence that on October 18, 2014, Hoopa Valley Police Officer Seth Ruiz was driving on Rice Lane searching for a suspect in an unrelated vehicle theft when he saw a person he knew to be Susan Silk sitting on a picnic table outside a house he believed was appellant's residence because he had executed a search warrant of the premises three or four years earlier. When he stopped his patrol car, Officer Ruiz saw Susan Silk alight from the table and enter the house. He also saw a car he believed belonged to appellant, because it was one appellant was driving in 2009 or 2010, when Officer Ruiz pursued the vehicle in connection with an earlier offense appellant was suspected of committing.
Officer Ruiz got out of his vehicle and knocked on the door. Sherri Mosier responded and through the open door Ruiz saw a motorcycle he had seen appellant drive in the past parked inside the house. When asked who else was in the house, Mosier replied that Savannah Iverson and Stephanie Silk were also inside. Soon afterward, Officer Norton, who went to the house to assist Officer Ruiz, found Susan Silk hiding behind the house and a man named Jaime Moore hiding in a nearby shed and detained them and Sherri Mosier and Savannah Iverson. After checking for "wants and warrants," Officer Ruiz found that Silk was on probation with a search condition, Iverson was subject to a felony warrant from another county, and Sherri Mosier's license "was suspended with service needed." At that point, Officer Norton ordered Iverson to open the door and later arrested her on the out-of-county warrant. Before Ruiz could search the house to see whether others were present, Mosier asked to enter to turn off the stove in the kitchen. Ruiz accompanied her and while he was in the kitchen heard a noise in a back room. He then saw appellant, who he knew was on parole from a 2009 or 2010 offense, walk around a corner into view. When appellant told Officer Ruiz that he needed permission in order to search the house, Ruiz said he planned to search the premises on the basis of the search condition of his parole, and asked Officer Norton to confirm that appellant was on PRCS parole and probation with search conditions, which Norton did. Mosier told Ruiz that appellant had access to all of the rooms of the house, although lease agreements were posted on some bedroom doors.
Inside the house the officers found drugs, including methamphetamine, heroin, and marijuana, as well as scales, packaging materials, and firearms. The court denied appellant's motion to suppress this evidence and held appellant to answer for the offenses charged in the seven counts of the information.
As earlier noted, on December 15, 2014, a plea of guilty was entered to a single count of violation of Health and Safety Code section 11366.5, subdivision (a), with a firearm enhancement.
DISCUSSION
The scope of reviewable issues on appeal after a plea of guilty is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
Correctly pointing out that the record shows that he received "a total of 0 days of presentence credits pursuant to Penal Code section 2900.5 and a total of 0 days for conduct credits pursuant to Penal Code section 4019," appellant moved to amend the abstract of judgment to include conduct credits pursuant to Penal Code sections 2900.5 and 4019, contending "that he is entitled to a total of 58 days of presentence credits pursuant to . . . section 2900.5, and 58 days of conduct credits (good time/work time) pursuant to . . . section 4019, for a grand total of 116 local conduct credits."
Appellant's motion ignored the fact that at the time he was sentenced, and before his plea was accepted, the court indicated its intention to give his credits to the PRCS, which the court also referred to as the "probation case," thereby allowing the court to "terminate [the] probation case [as] unsuccessful." As a result of this, the court explained, appellant "wouldn't have any credits" attributable to the present offense and would therefore have to serve the entire two-year sentence imposed. The court asked appellant "do you understand what we're talking about?" and appellant answered "Yes, sir."
Appellant's change of plea was accepted by the court in a manner that complied with the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
Defendant was represented by competent counsel who guarded his rights and interests.
The sentence imposed was authorized by law in all respects.
Our independent review having found no arguable issues that require further briefing, the judgment of conviction is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.