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The People v. Gary R. Xavier

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO


December 28, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GARY R. XAVIER, DEFENDANT AND APPELLANT.

(San Francisco County Super. Ct. No. 177095)

The opinion of the court was delivered by: Haerle, Acting P.J.

P. v. Xavier

CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I. INTRODUCTION

Pursuant to a negotiated disposition whereby he pled guilty to five of seven counts charged in the information, appellant was sentenced (via a corrected sentencing hearing) to 18 years and 8 months in state prison. Pursuant to People v. Wende (1979) 25 Cal.3d 436, he now appeals and asks this court to examine the record and determine if there are any issues deserving of further briefing. Because the trial court did not grant appellant's request for a certificate of probable cause, the only issue before us is the corrected sentence imposed by the trial court. (See Pen. Code, § 1237.5*fn1 ; Cal. Rules of Court, rule 8.304(b).) We have examined the record and find no issues relating to that subject that are deserving of further briefing.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was originally charged with seven counts, five of them for robbery (§ 212.5, subd. (c)) and the other two for attempted robbery and assault. (§§ 245, subd. (a)(1); 664/212.5, subd. (c) .) Pursuant to a plea agreement, on April 12, 2002, appellant pled guilty to the five robbery counts and withdrew his prior not guilty pleas to the other two counts, which the prosecution thereupon dismissed. He also admitted an arming allegation as to two of the robbery counts and a prior strike conviction. (§§ 12022, subd. (b)(1); 667, subd. (d)(1).) At that hearing, appellant personally agreed to the waiver of all the relevant rights, personally pled guilty to the five robbery charges, and personally admitted the weapons enhancement allegations.

Pursuant to that plea agreement, on June 11, 2002, appellant was sentenced to a total of 20 years in state prison. In making this sentence, the trial court broke down the total 20-year sentence and, in so doing, noted that it was imposing a one-year sentence for each of the two admitted allegations of weapon use under section 12022, subdivision (b).

Appellant did not appeal this sentence at that time but, via two letters to the court, the Department of Corrections notified the trial judge that a mistake had been made in the sentencing of appellant, and that the additional sentence imposed for the two weapon enhancement allegations should have each been calculated at one-third the full amount, i.e., four months each, rather than as one year each.

On June 23, 2010, the court reconvened on this issue, with new counsel having been appointed by the court previously. Although appellant had requested that he be permitted to be present at the new sentencing hearing, the trial court denied that request. It then corrected the 2002 sentence imposed by reducing the sentences for the two admitted weapons enhancements to four months each, with the result being that appellant's total sentence was reduced from 20 years to 18 years and 8 months, with total pretrial confinement credit of 1886 days allowed.

Via his appointed counsel, appellant filed a notice of appeal on July 29, 2010, and another one in pro per on August 10, 2010. Via the latter, appellant personally asserted various claims of error and asked for the issuance of a certificate of probable cause. The trial court declined the latter request and thus no such certificate was issued.

III. DISCUSSION

As noted above, because no certificate of probable cause was issued by the trial court, the only issue before us is the corrected sentence imposed on appellant at the June 23, 2010, hearing. (Cal. Rules of Court, rule 8.304(b).) Although in his in pro per notice of appeal and a supplemental in pro per brief, appellant raises many alleged errors committed by the trial court, very few of them pertain to the corrected sentence.

One such issue is appellant's contention that he should have received five more days of pretrial custody credits, specifically three more days of actual custody credit and two more days of conduct credit. The basis for this assertion is his argument that, inasmuch as he was arrested on January 1, 1999, and originally sentenced on June 11, 2002, he should have been credited with 1261 days of custody credits, not the 1258 days with which he was actually credited. Appellant's arithmetic is simply incorrect. Even counting the 29 days of February 2000 and both the day of his arrest and the day of his original sentencing, the total number of days of appellant's confinement was, indeed, 1258 days, as the court originally found.

Another argument relative to sentencing in appellant's supplemental brief is that the court should have allowed him to be present at the June 23, 2010, resentencing hearing. However, inasmuch as that hearing involved "matters as to which his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him" (People v. Harris (2008) 43 Cal.4th 1269, 1306), we hold that the trial court did not abuse its discretion in declining appellant's request that it arrange for him to be transported from the Salinas Valley Prison to the court so he could be present for the resentencing hearing.

In his supplemental brief, appellant raises several other arguments conceivably pertaining to his sentencing, but all of them relate to his 2002 plea and sentencing hearings, not to the correction of his sentence made in June 2010. No notice of appeal was filed subsequent to appellant's 2002 sentence and, in any event, at the 2002 plea and sentencing hearings, appellant specifically agreed with the statements of his counsel regarding the advice he had been given concerning the consequences of his guilty plea, and that he understood (1) the rights he was waiving, (2) that he was pleading guilty, and (3) the possible consequences thereof. In view of this, appellant's arguments in his November 2010 supplemental brief that, e.g., he should have been admitted to a diversionary program for possible rehabilitation, that he should have been advised of his right to appeal, and that the calculation of his sentence in 2002 was incorrect, and other similar arguments, have long-since been waived.

We have examined the record, especially including appellant's in pro per notice of appeal and his supplemental brief, and find no issues relating to the corrected sentence imposed on appellant in 2010 that are deserving of further briefing.

IV. DISPOSITION

The judgment, including the revised sentence imposed by the trial court, is affirmed.

We concur: Lambden, J. Richman, J.


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