Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. BLF004593, Sarah Adams Christian, Judge. Affirmed.
Beatrice C. Tillman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant was sentenced to state prison pursuant to a negotiated plea agreement providing for a stipulated low term of 16 months, consecutive with any other term. He appeals from the judgment.
His notice of appeal stated he was filing an appeal following a trial, and did not include the statement required pursuant to Penal Code section 1237.5, or rule 8.304(b) of the California Rules of Court.
BACKGROUND
Defendant was charged with indecent exposure (Pen. Code, § 314, subd. (1)), having been convicted previously of sexual battery. (§ 243.4, subd. (a).) It was further alleged that defendant had been convicted previously of a felony for which he had served a separate term in state prison (prison prior). (§ 667.5, subd. (b).) On December 27, 2007, defendant pled guilty to the indecent exposure charge, based upon a stipulated low term sentence of 16 months in state prison, consecutive to any other sentence defendant was now serving, and upon the prosecutor’s agreement to strike the prison prior allegation. The court sentenced defendant in accordance with the terms of the plea agreement.
Unless otherwise indicated, all further statutory references are to the Penal Code.
We note that indecent exposure is punishable as a misdemeanor unless it is alleged that defendant has been convicted previously of indecent exposure, or has a previous conviction for lewd and lascivious acts against a minor. (See § 314 [the last sentence reads: “Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison.”].) Because defendant pled guilty to the charge as a felony, and because the record does not include any information about the nature of his prior conviction, we are bound by the defendant’s admission. (People v. West (1970) 3 Cal.3d. 595.)
On January 17, 2008, the court denied any presentence credits against defendant’s sentence because defendant was serving a term for a revocation of parole at the time he committed the instant offense. Defendant appeals.
DISCUSSION
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1386, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting that we undertake an independent review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, we conclude defendant was sentenced in accordance with the terms of the plea agreement. The agreement provided for defendant to plead guilty to count 1 as a felony in return for a stipulated sentence of 16 months in state prison and the prosecutor’s promise to strike the prison prior allegation. The court sentenced the defendant in accordance with the terms of the agreement.
Second, we conclude defendant was not entitled to any presentence custody credits. The parole revocation term for which defendant was serving time was imposed in May, 2007, prior to the commission of the instant offense. The custody time was not attributable to proceedings related to the same conduct for which the defendant has been convicted in the current case. (§ 2900.5, subd. (b); see also, In re Rojas (1979) 23 Cal.3d 152, 156-157.) Further, the plea agreement provided that any term imposed in this case would run consecutive to any other term. Denial of credits was proper.
Third, the record does not reveal any basis to find that trial counsel was constitutionally ineffective. (Strickland v. Washington (1984) 466 U.S. 668, 693-694, 700 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
Fourth, there was no violation of the “Valdivia Act.” We assume defendant’s reference was to Valdivia v. Davis (2002) 206 F.Supp.2d 1068 (Valdivia). That case involved a question of whether California’s unitary administrative parole revocation procedures, from which the parolee was entirely excluded, violated a parolee’s federal due process rights.
The internal review proceedings under review in Valdivia involved a “screening offer” made by a Board of Prison Terms deputy commissioner after the internal review, that was presented to a parolee after the internal case conference with the unit supervisor, and in the absence of a preliminary revocation hearing to determine whether there is probable cause to believe that the parolee violated a parole condition. The “screening offer” tendered to the parolee a specific term of incarceration in exchange for the disposition of the case and a waiver of the parolee’s right to have a revocation hearing. (Valdivia, supra, 206 F.Supp.2d at p.1070.)
The District Court found that California’s system allowing a delay of up to forty-five days or more before providing a parolee an opportunity to be heard regarding the reliability of the probable cause determination did not meet constitutional muster, and that the screening offer procedure placed a strain on the fact-finding process, where the parolee is required to make a decision to accept the screening offer without the benefit of a probable cause determination. (Valdivia, supra, 206 F.Supp.2d at p. 1078.)
The instant matter arises from a criminal complaint filed in the Superior Court, and does not involve an administrative proceeding. There was no prior internal proceeding from which the defendant was excluded; he was present at the arraignment. The prosecutor was not obliged to make an offer; there is no constitutional right to a plea bargain. (Weatherford v. Bursey (1977) 429 U.S. 545, 561 [97 S.Ct. 837, 51 L.Ed.2d 30].) Plea bargaining is governed by principles of contract law. (Mabry v. Johnson (1984) 467 U.S. 504, 507 [104 S.Ct. 2543, 81 L.Ed. 2d 437].) As a contract matter, an offer may be revoked by the offeror any time prior to acceptance. (T.M. Cobb v. Superior Court (1984) 36 Cal.3d 273, 278.) Thus, a prosecutor may withdraw from a plea bargain, or revoke or withdraw the offer, before the defendant pleads guilty or otherwise detrimentally relies on the bargain. (People v. Rhoden (1999) 75 Cal.App.4th 1346, 1352; see also, People v. McClaurin (2006) 137 Cal.App.4th 241, 248.)
The record does not indicate that an offer was made at the time of arraignment, or that defendant accepted it or detrimentally relied on the offer. If one was made, it was properly withdrawn or revoked by the prosecutor.
We have completed our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.