People v. Fierros CA2/1 ( 2014 )

Filed 8/28/14 P. v. Fierros CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B254199
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA026516)
v.
ORLANDO FIERROS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Mark S.
Arnold, Judge. Appeal dismissed.
______
Jonathan B. Steiner and Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
______
On December 16, 2013, Orlando Fierros filed a motion for correction of
presentence custody credit awarded in connection with his sentencing in November 1996.
Fierros requested a recalculation of actual days, maintaining that he was entitled to
377 actual days rather than the 375 actual days he had been awarded at sentencing.
The trial court denied the motion, apparently under the impression that the correction
requested did not relate to actual days but to conduct days, which based on Fierros’s
convictions were limited to 15 percent by Penal Code section 2933.1. Fierros filed a
notice of appeal.
We appointed counsel to represent Fierros on appeal. After examining the
record, appointed counsel filed another motion in the trial court to correct the award
of actual days. The trial court granted that motion on March 18, 2014, awarding Fierros
377 actual days. On April 9, 2014, the court entered an amended abstract of judgment
reflecting the additional days. On April 14, 2014, appointed counsel filed a Wende brief
raising no issues on appeal and requesting that we independently review the record.
(People v. Wende (1979) 25 Cal. 3d 436.) On April 15, 2014, we directed appointed
counsel to immediately send the record on this appeal and a copy of the opening brief to
Fierros and notified Fierros that within 30 days from the date of the notice he could
submit by letter or brief any ground of appeal, contention or argument he wished us to
consider.
After receiving extensions, Fierros filed a letter brief on July 21, 2014. In his
brief, Fierros does not raise any issue related to his motion for correction of presentence
custody credit or the trial court’s ruling on the motion by appointed counsel during the
pendency of this appeal. Fierros, however, claims that he was denied the right to counsel
at his arraignment, an argument that is not before the court on his appeal from the initial
denial of his motion for correction of presentence custody credit. Given that Fierros is in
custody and his direct appeal is complete, his potential avenue for relief is by habeas
corpus.
We have examined the entire record and determined that, because Fierros has now
received 377 actual days, as he requested, his appeal from the initial denial of that relief
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is moot. As a result, the appeal is dismissed. We are satisfied that Fierros’s attorneys
have fully complied with their responsibilities and that no arguable appellate issue
exists. (People v. Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal. 4th
106, 110.)1
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
JOHNSON, J.
1
In the Wende brief, appointed counsel states that Fierros was not present in court
“as he had requested in his initial motion” when his actual days of custody credits were
corrected. Fierros, however, in his initial motion did not request to be present but simply
recognized a defendant’s general right to be present for pronouncement of judgment.
Nevertheless, given that Fierros received the actual days of custody credit that he
requested, no issue exists due to his lack of appearance. (In re Jimenez (1969) 269
Cal. App. 2d 621, 624 [“‘determinative question [when a defendant is not present in court]
is whether or not the accused suffered any damage by reason of absence at any particular
stage of the proceedings’”].) Fierros suggested in the initial motion that he was entitled
to an additional day of conduct credit, but requested only a recalculation of the actual
days. In any case, Fierros failed to account for the 15 percent limitation on conduct credit
and in his letter brief filed in connection with the appeal raised no issue regarding
conduct credit.
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