People v. Agosta CA4/3 ( 2023 )

Filed 7/18/23 P. v. Agosta CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062425
v. (Super. Ct. No. 11CF1595)
JOHN RAND AGOSTA, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Jonathan S.
Fish, Judge. Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant John Rand Agosta was convicted of murder and was sentenced
to prison for 50 years to life. Agosta filed a petition for resentencing based on alleged
mental health problems stemming from his military service. (See Pen. Code, § 1170.91,
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subd. (b).) The trial court denied the petition. Agosta filed an appeal.
Appointed counsel filed an opening brief under the procedures outlined in
Anders v. California (1967) 386 U.S. 738 (Anders), and People v. Wende (1979) 25
Cal.3d 436 (Wende). Agosta filed a supplemental brief on his own behalf.
In the interests of justice, this court has reviewed the record and found no
arguable issues. (See People v. Delgadillo (2022) 14 Cal.5th 216, 230.) We will briefly
address the issues Agosta raises in his supplemental brief, otherwise we affirm the order
of the trial court.
I
FACTS AND PROCEDURAL BACKGROUND
In June 2013, a jury found Agosta guilty of murder and found true an
allegation that he personally discharged a firearm causing death. The trial court
sentenced Agosta to an aggregate term of 50 years to life.
In February 2023, Agosta filed a petition for resentencing based on alleged
conditions due to his military service. (§ 1170.91, subd. (b).) The trial court denied the
petition, noting “this matter has been litigated and denied previously.”
In March 2023, Agosta filed a notice of appeal.
In May 2023, appointed counsel filed an opening brief raising no arguable
issues. Counsel averred, “I have thoroughly reviewed the record in this case. A staff
attorney at Appellate Defender, Inc. has also reviewed this case.”
In June 2023, Agosta filed a supplemental brief on his own behalf.
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Further undesignated statutory references are to the Penal Code.
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II
DISCUSSION
When an appointed counsel identifies no arguable issues on appeal, an
appellate court independently reviews the record. (Wende, supra, 25 Cal.3d at pp. 441–
442.) Generally, “an arguable issue on appeal consists of two elements. First, the issue
must be one which, in counsel’s professional opinion, is meritorious. That is not to say
that the contention must necessarily achieve success. Rather, it must have a reasonable
potential for success. Second, if successful, the issue must be such that, if resolved
favorably to the appellant, the result will either be a reversal or a modification of the
judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
If a defendant files his own supplemental brief, the “opinion must reflect
the contentions and the reasons that they fail.” (People v. Kelly (2006) 40 Cal.4th 106,
120.) However, a “decision does not require an extended discussion of legal principles.
[Citations.] Moreover, a recitation of each of the defendant’s assertions will not be
necessary in all cases; the purposes of the constitutional requirement [for a written
decision] may in some circumstances be satisfied by a summary description of the
contentions made and the reasons they fail.” (Id. at p. 121.)
We have conducted an independent review of the record and have found no
arguable issues. Thus, we affirm the ruling of the trial court, which denied Agosta’s
petition for recall and resentencing. (See § 1170.91.)
In his supplemental brief, Agosta asserts he served in the military, that he
has mental health problems stemming from his military service, and the trial court failed
to take these conditions into account at the time of his sentencing. Agosta further seeks
“conduct credits” of 882 days while in the Orange County jail.
Generally, a former or current member of the military who has been
convicted of a felony may petition for resentencing alleging they suffer from a mental
health condition related to their military service, and that condition “was not considered
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as a factor in mitigation at the time of sentencing.” (§ 1170.91, subd. (b)(1).) However,
certain felony convictions (“super strikes”) render a defendant statutorily ineligible for
relief. (§ 1170.91, subd. (c).) Included among those felonies is: “Any homicide offense,
including any attempted homicide offense . . . .” (§ 667, subd. (e)(2)(C)(iv)(IV).)
Agosta was convicted of murder, so he is ineligible for relief under the
applicable statutes. (See §§ 667, subd. (e)(2)(C)(iv)(IV), 1170.91, subd. (c).)
As far as “conduct credits,” these types of credits are generally based on the
number of days a defendant spends in custody prior to sentencing as a reward for good
behavior. (§ 4019.) “Conduct credits” are in addition to the number of days a defendant
has spent in actual custody, or what is known as credit for time served. (See § 2900.5.)
Defendants who are convicted of murder are not entitled to presentence conduct credits.
(See § 2933.2.) However, just like all criminal defendants, defendants convicted of
murder are entitled to credit for time served. (See § 2900.5.)
Here, the clerk’s transcript in Agosta’s case states: “Pursuant to Penal
Code Section 2933.2 the defendant is not entitled to conduct credits. Credits are 882
actual + 0 conduct totalling 882 days.” (Boldfacing omitted.) The amended abstract of
judgment in Agosta’s case also states that his credits for time served were calculated at
882 days.
Given Agosta’s ineligibility for relief under section 1170.91, and the proper
calculation of credits by the trial court at the time of sentencing, we find no arguable
issues on appeal. (See People v. Johnson, supra, 123 Cal.App.3d at pp. 109–110.)
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III
DISPOSITION
The order of the trial court is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
MOTOIKE, J.
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