People v. Leavy CA5 ( 2021 )

Filed 9/1/21 P. v. Leavy CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082261
Plaintiff and Respondent,
(Super. Ct. No. DF015287B)
v.
CARNELL LEAVY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. William D.
Palmer, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Snauffer, J. and DeSantos, J.
STATEMENT OF APPEALABILITY
This appeal is from a final judgment after a no contest plea and, as it only
concerns matters arising after the plea, is authorized by Penal Code section 1237.1
STATEMENT OF THE CASE
A felony complaint charged Carnell Leavy and his co-defendant, Marcelle Gray,
with assault with a deadly weapon while in custody (§ 4501, subd. (b); count 1); assault
with a deadly weapon by a prisoner undergoing a life sentence (§ 4500; count 2); and
unlawful possession of a sharp instrument while in prison (§ 4502, subd. (a); count 3).
As to count 1, it was also alleged that Leavy personally inflicted great bodily injury
within the meaning of section 12022.7, subdivision (a). As to all three counts, it was
further alleged that Leavy had suffered three prior convictions, arising from the same
1995 Madera County case, which qualify as strikes under sections 667, subdivisions (b)
through (i) and 1170.12, subdivisions (a) through (d). Finally, it was alleged that these
prior 1995 convictions qualified for a five-year enhancement under section 667,
subdivision (a). Leavy was already serving a sentence of life without the possibility of
parole.
On September 24, 2020, Leavy waived his constitutional rights, pled no contest to
an amended count 1, which now alleged a violation of section 4501, subdivision (b), and
admitted a strike allegation in exchange for an agreed upon sentence of four years. The
parties stipulated to a factual basis for the plea. The court dismissed the remaining counts
and allegations.
On October 22, 2020, the trial court sentenced Leavy to the agreed four-year term
consisting of the low term doubled to four years. (The court dismissed two of three strike
priors.) By law, this sentence is to be served fully consecutive to the sentence Leavy is
1 Unlabeled statutory references are to the Penal Code.
2.
already serving. The court imposed a $300 restitution fine; $300 parole revocation fine;
$40 court security fee; and a $30 conviction assessment.
Leavy filed a timely notice of appeal purporting to challenge the validity of his
sentence on the grounds that it violates the express terms of the plea bargain and is
unconstitutional. The trial court refused to issue a certificate of probable cause.
STATEMENT OF FACTS2
On July 31, 2019, at Kern Valley State Prison, Corrections Officer Andres
Fernandez observed inmates Leavy and Gray engaged in a fist fight with inmate Loera.
When ordered to stop by the guards, Leavy separated and was seen throwing an unknown
object over the wall into a parking lot.
APPELLATE COURT REVIEW
Leavy’s appointed appellate counsel has filed an opening brief that summarizes
the pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating Leavy was advised he could file his own
brief with this court. By letter on March 1, 2021, we invited Leavy to submit additional
briefing.
On March 8, 2021, Leavy responded to our invitation with a response, styled
“Habeas Corpus/Appeal Penal Code 1473,” which this court has read and considered.
The gist of appellant’s lengthy response, including exhibits, was that the sentencing
judge’s four-year sentence was an illegal sentence and should be vacated. However, this
claim is without merit, for the following reasons.
Leavy was sentenced simultaneously with his co-defendant, Gray, under amended
count one, section 4501, subdivision (b). At the hearing, Gray’s counsel on the record
2 Taken from the transcript of the preliminary hearing held on September 24,
2020.
3.
corrected the short form probation report, explaining that instead of a four-year term, the
agreed upon sentence was in reality for the low term of two years, doubled to four years
due to the strike prior. All counsel and the parties, including Leavy and his counsel, were
present and did not object to the court’s subsequent explanation of how the four years
was calculated, nor was there any other objection noted.
Having undertaken an examination of the entire record, we find no evidence of
ineffective assistance of counsel or any other arguable error that would result in a
disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
4.