People v. Allen CA2/6 ( 2014 )

Filed 1/13/14 P. v. Allen CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
THE PEOPLE, 2d Crim. No. B247228
(Super. Ct. No. SA078077)
Plaintiff and Respondent, (Los Angeles County)
v.
HERBERT ALLEN,
Defendant and Appellant.
This is a presentence credits appeal. (Pen. Code, §§ 2900.5, 4019.) 1
Herbert Allen appeals from the February 13, 2013 judgment entered after he pled no
contest in case number GA088409 to 22 counts of second degree burglary (§ 459),
vandalism (§ 594, subd. (a)) and admitted a prior prison enhancement (§ 677.5, subd.
(b)). Appellant admitted violating probation in two other cases: case number SA076474
and case number SA078077 which were consolidated for sentencing.
At the February 13, 2013 sentencing hearing, the trial court revoked
probation in case number SA078077 and ordered appellant to serve a seven year state
prison sentence previously imposed for multiple counts of second degree burglary (§ 459)
and vandalism (§ 594, subd. (a)).
1
All statutory references are to the Penal Code unless otherwise stated.
In case number GA088409, the trial court sentenced appellant to eight
months (one third the midterm) to be served consecutive to the seven year sentence in
case number SA078077.
The trial court reinstated and terminated probation in the third case, case
number SA076474. ,
In case numbers SA078077 and GA088409, appellant was awarded 58 days
custody credit plus 58 days conduct credits. (§§ 2900.5, 4019.)
Appellant appealed, contending that he was entitled to additional
presentence credits in case number SA078077. On March 21, 2013, the trial court
corrected the sentence to reflect that appellant was awarded 605 presentence custody
credits (303 actual days and 302 conduct credit) in case number SA078077.
Appellant contends he is entitled to more presentence credits.
We appointed counsel to represent appellant in this appeal. After
examining the record, counsel filed an opening brief raising no issues. On November 12,
2013, we advised appellant that he had 30 days to personally submit any contentions he
wished us to consider.
On December 16, 2013, appellant filed a supplemental brief, alleging that
the trial court erred in not awarding presentence credits from January 16, 2011 to
September 27, 2011 in case number SA078077. When the change of plea was entered in
case number SA078077, appellant agreed to waive "back time," i.e., presentence credits
prior to September 27, 2011. The plea and conviction was the subject of a prior appeal
that appellant abandoned on April 4, 2013. (B243380.) We have taken judicial notice of
the record in B243380 which indicates that appellant waived presentence credits accruing
prior to September 27, 2011.
Appellant's also alleges that he was denied effective assistance of counsel
and due process. These contentions are not supported by the record. (Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693]; People v. Bolin (1998) 18
Cal.4th 297, 333.)
2
We have reviewed the entire record and are satisfied that appellant's
attorney has fully complied with his responsibilities and that no arguable issues exist.
(People v. Wende (1979) 25 Cal.3d 436, 443; People v. Kelly (2006) 40 Cal.4th 106,
126.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
3
Patricia Hegarty, Judge
Superior Court County of Los Angeles
______________________________
Gideon Margolis, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Respondent.
4