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People v. Valencia

California Court of Appeals, Second District, Fifth Division

May 19, 2014

THE PEOPLE, Plaintiff and Respondent,
v.
CARLOS ALBERT VALENCIA, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed with modifications. Los Angeles County Super. Ct. No. GA083664.

Page 327

COUNSEL

Richard Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

TURNER, P. J.

Defendant, Carlos Albert Valencia, appeals from the November 2, 2012 judgment entered after he pled no contest to charges of: forgery; forged prescription; and transportation and possession for sale of hydrocodone and alprazolam. He pled no contest after his motion to suppress evidence was denied by the trial court. Defendant appeals under Penal Code section 1538.5, subdivision (m).[1] (People v. Lloyd (1998) 17 Cal.4th 658, 664-665 [72 Cal.Rptr.2d 224, 951 P.2d 1191]; People v. Panizzon (1996) 13 Cal.4th 68, 74-75 [51 Cal.Rptr.2d 851, 913 P.2d 1061].) In the published portion of this opinion, we discuss issues of mootness concerning presentence credits and fines imposed for crimes committed after October 1, 2011. Specified offenses occurring after that date are subject to the 2011 Realignment Legislation. As will be noted, we conclude that any contention concerning inadequate presentence credits is moot. And, we conclude that the prosecutor’s contention concerning inadequate fines, penalties and surcharges is not moot. Accordingly, we modify the judgment to impose additional fines, penalties and surcharges.

Page 328

Filed on July 16, 2012, an information charged defendant with 14 felony counts: forgery (§ 470, subd. (d), count 1); forged prescription (Bus. & Prof. Code § 4324, subd. (a), count 2); drug possession, forged prescription (Bus. & Prof. Code § 4324, subd. (b), count 3); transportation or sale of a controlled substance--hydrocodone, hydromorphone hydrochloride, and promethazine with codeine (Health & Saf. Code § 11352, subd. (a), counts 4, 8, 10, 13); possession for sale of a controlled substance--hydrocodone, hydromorphone hydrochloride, and promethazine with codeine (Health & Saf. Code § 11351, counts 5, 9, 11); and possession for sale of designated controlled substances—alprazolam and temazepam (Health & Saf. Code § 11375, subd. (b)(1), counts 6, 7, 12) As to counts 4, 8, 10 and 13, defendant allegedly offered for sale or sold more than 14.25 gram of a substance containing heroin.[*]

On November 2, 2012, defendant pled no contest to counts 1 through 10. The trial court dismissed counts 4, 8 and 10 pursuant to § 1385, subd. (a). The trial court orally stated the probation report suggested defendant might have been using the prescription drugs for his own pain relief. (The clerk’s minutes do not reflect any such reasons as required by § 1385, subd. (a).) The prosecution has not appealed the partial dismissal order.) Counts 11 through 14 were dismissed pursuant to plea negotiations. Defendant was sentenced to two years, eight months consisting of the low term of two years for count 1 plus one-third the mid-term, or eight months, for count 2. Concurrent sentences were imposed for counts 3, 5 through 7 and 9. Defendant was sentenced on the seven counts to county jail pursuant to what is now section 1170, subdivision (h)(1). Defendant received credit for 235 days in presentence custody plus 235 conduct credits for a total of 470 days. Defendant was ordered to pay a: $240 restitution fine; $280 court operations assessment; $210 conviction assessment; and a single $50 criminal lab fee plus penalty assessments. No post-incarceration period of supervision was imposed pursuant to what is now section 1170, subdivision (h)(5)(B).

Defendant filed his notice of appeal on November 30, 2012. After the notice of appeal was filed, we appointed counsel to represent defendant. After examination of the record, appointed appellate counsel filed a brief in which no issues were raised. Instead, appointed appellate counsel asked us to independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442 [158 Cal.Rptr. 839, 600 P.2d 1071]. (See Smith v. Robbins (2000) 528 U.S. 259, 264 [145 L.Ed.2d 756, 120 S.Ct. 746].) On ...


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