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People v. Contreras

September 23, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD GALINDO CONTRERAS, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Kings County. Thomas De Santos, Judge. (Super. Ct. No. 05CM0191).

The opinion of the court was delivered by: Gomes, J.

CERTIFIED FOR PUBLICATION

OPINION

Richard Galindo Contreras argues two issues -- delay in violation of state and federal constitutional due process and speedy trial guarantees and ineffective assistance of counsel -- both of which arise out of sentencing after delivery to the district attorney of a Penal Code section 1381 demand for sentencing.*fn1 We affirm the judgment.

PROCEDURAL BACKGROUND

On January 18, 2005, the district attorney filed two documents, a complaint that charged Contreras with, inter alia, possession of a controlled substance on January 14, 2005, and that alleged seven prison-term priors (Health & Saf. Code, § 11350, subd. (a); 667.5, subd. (b)) and a notice that informed him he did not meet the eligibility requirements for a deferred entry of judgment program due to his prior conviction of ―an offense involving controlled substances or restricted dangerous drugs‖ (§ 1000).

On January 25, 2005, Contreras executed an advisement of rights, waiver, and plea form for Proposition 36 probation, entered a plea of guilty to possession of a controlled substance, admitted two prison-term priors, and acknowledged, inter alia, a maximum possible sentence of five years in state prison if he were to violate probation. (Health & Saf. Code, § 11350, subd. (a); §§ 667.5, subd. (a), 1210 et seq.)

On February 23, 2005, as recommended by the probation officer, the court granted Proposition 36 probation to Contreras for three years on, inter alia, the conditions that he obey all laws and that if he were ―arrested for any non drug-related offense‖ or were to ―violate any non drug-related condition of probation‖ the court could revoke probation and impose sentence ―pursuant to otherwise applicable law.‖

On November 10, 2005, the probation officer filed a petition for revocation of probation on the basis of Contreras's commission of, inter alia, a robbery in Tulare County on May 2, 2005. (§ 211.) On November 21, 2005, the court revoked his probation and issued a no-bail bench warrant for his arrest.*fn2

On July 21, 2008, Contreras admitted his violation of probation. On August 28, 2008, the court sentenced him to an aggregate four-year term (the two-year midterm for possession of a controlled substance and two consecutive one-year prior-prison-term enhancements).*fn3 (Health & Saf. Code, § 11350; § 667.5, subd. (b).)

ISSUES ON APPEAL

Contreras argues (1) delay of his sentencing in violation of state and federal constitutional due process and speedy trial guarantees and (2) ineffective assistance of counsel due to his attorney's failure to insist on sentencing before his release from prison on parole.

DISCUSSION

1. Delay of ...


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