People v. Codero CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD254562
- Trial judge
- Timothy R. Walsh
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Patricia D. Benke (author), Gilbert Nares, Cynthia Aaron
Analysis
The trial court affirmed Cordero's guilty plea and sentenced him to state prison with a suspended sentence and probation, denying his request for presentence custody credit for time served in juvenile detention for a prior probation violation. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on appeal after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of presentence custody credit for 101 days served in juvenile detention“The time Cordero served in juvenile hall stemmed from the earlier probation violation, and was not attributable to proceedings related to the conduct for which Cordero was convicted in this case. Thus, the issue is not reasonably arguable.” | unclear | not reached | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to identify issues and the court to independently review the record when counsel finds no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel who believes an appeal is frivolous, requiring a brief identifying potential issues and court review.
- relied: In re Rojas (1979) 23 Cal.3d 152 — Cited by defense counsel as authority for presentence custody credit, though the court found the issue not reasonably arguable because the detention was for a prior violation.
The appellate opinion: sound — The opinion is procedurally sound as it follows the Wende/Anders protocol for reviewing a case where counsel finds no arguable issues. It correctly identifies the sole potential issue raised by counsel and explains why it fails on the merits based on the nature of the detention.
How this analysis was made · dispute it
unusual dispositionCordero pleaded guilty to assault by means of force likely to produce great bodily injury with a great bodily injury enhancement; the trial court imposed a five-year suspended prison sentence with probation, awarded 123 days of custody credit, and denied credit for 101 days spent in juvenile detention on an unrelated probation-violation commitment. On a Wende/Anders appeal, the Court of Appeal found no reasonably arguable issue, concluding the juvenile-hall time was not attributable to the present case, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of presentence custody credit for September 30, 2014 to January 8, 2015, the period Cordero spent in juvenile hall serving a commitment for a prior juvenile probation violation“The time Cordero served in juvenile hall stemmed from the earlier probation violation, and was not attributable to proceedings related to the conduct for which Cordero was convicted in this case. Thus, the issue is not reasonably arguable.” | unclear | correct | agree with court Penal Code section 2900.5, subdivision (b) limits credit to custody attributable to proceedings related to the same conduct for which the defendant was convicted. Cordero was committed to Camp Barrett on April 10, 2014 for a trolley-fare probation violation, before he was identified as a suspect, and remained in juvenile custody on that commitment until January 8, 2015, when he was released and rebooked on the present charges. Under In re Rojas, custody already being served on an unrelated matter is not credited to the new case, and the record as described gives no basis to argue the present charges were a cause of the juvenile detention. The court's conclusion is consistent with the statute and Rojas. |
Independent Wende/Anders review of the entire record for arguable issues after guilty plea and probationary sentence“Additionally, we have reviewed the entire record as mandated by Wende and Anders and have not identified any reasonably arguable issue for reversal on appeal.” | unclear | correct | agree with court The court followed the Wende procedure: counsel filed a no-issues brief identifying a possible issue, the defendant was given the opportunity to file a supplemental brief and did not, and the court independently reviewed the record. Nothing in the opinion suggests an unaddressed sentencing or plea defect; the stipulated five-year suspended sentence (low term of two years plus three-year section 12022.7 enhancement, gang allegation stricken) matches the plea agreement as described. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacks merit may file a brief referring to anything in the record that might arguably support the appeal.
- relied: In re Rojas (1979) 23 Cal.3d 152 — A defendant already in custody on an unrelated matter is not entitled to presentence credit against a new offense for that time, because the custody is not attributable to the new proceedings under Penal Code section 2900.5, subdivision (b).
- missed: People v. Bruner (1995) 9 Cal.4th 1178 — Under section 2900.5, subdivision (b), a defendant seeking credit for a period of custody that has multiple causes must show that the conduct underlying the current sentence was a 'but for' cause of that custody; strict causation applies.
The appellate opinion: sound with gaps — The opinion correctly applies the attribution rule of section 2900.5, subdivision (b) and In re Rojas to a juvenile commitment that predated Cordero's identification as a suspect, and it follows the required Wende procedure. It does not cite People v. Bruner's strict-causation test, which would have made the analysis more complete, though the omission does not affect the result in a Wende review.
Opinion
Filed 2/19/16 P. v. Codero CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068379
Plaintiff and Respondent, v. (Super. Ct. No. SCD254562)
EDUARDO CORDERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Eduardo Cordero was charged with robbery (Pen. Code, § 211;1 count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); counts 2 and 1 All statutory references are to the Penal Code unless otherwise noted. 3), and battery with serious bodily injury (§ 243, subd. (d); count 4). The information alleged the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of Penal Code section 186.22, subdivision (b)(1), and that Cordero was 16 years of age or older when he committed the crimes within the meaning of Welfare and Institutions Code section 707, subdivision (d)(1). The information further alleged that Cordero personally inflicted great bodily injury on the victim within the meaning of Penal Code section 12022.7, subdivision (a).
Cordero entered into a plea agreement, under the terms of which he admitted one count of assault and the special allegations on that count under sections 186.22, subdivision (b)(1) and 12022.7, subdivision (a). In exchange for the guilty assault plea the remaining counts were dismissed and the parties stipulated to a five-year suspended state prison sentence and probation on the condition Cordero serve 365 days in county jail and waive local conduct credit under section 4019 for time spent in county jail. The trial court accepted Cordero's plea, found Cordero guilty, and on the People's motion dismissed all other charges. The court sentenced Cordero to state prison on count 2 under section 245, subdivision (a)(4) for the low term of two years and imposed a consecutive sentence of three years under section 12022.7, subdivision (a).
Pursuant to the plea agreement, the court struck the gang allegation, suspended execution of the sentence, and placed Cordero on formal probation on certain terms and conditions, including serving 365 days in county jail. The court awarded Cordero 123 2 days of credit for time spent in county jail, but denied Cordero's request for credit for 101 days served in juvenile detention prior to being transferred to county jail in this case.
Cordero filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any reasonably arguable issue for reversal on appeal. Counsel asks this court to review the record as mandated by Wende. We offered Cordero the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
As the basis for his guilty plea, Cordero admitted that on March 5, 2014, he committed an assault by means of force likely to produce great bodily injury, that he did personally inflict such injury, and that he committed the assault for the benefit of a criminal street gang.
In 2013, Cordero was declared a ward of the juvenile court under Welfare and Institutions Code section 602. While on juvenile probation for prior crimes, Cordero left home without permission and was listed on a "hotsheet" as a runaway juvenile. On April 8, 2014, before he was identified as a suspect in the crimes in this case, Cordero was detained by a trolley security guard for not purchasing trolley fare. As a result, Cordero was found to be in violation of his probation and, on April 10, 2014, was sentenced to 365 days at Camp Barrett, a juvenile detention facility.
On April 11, 2014, after the preliminary hearing for Cordero's codefendant, a victim of the March 5, 2014, assault identified Cordero as one of his assailants. On 3 September 26, 2014, while detained at Camp Barrett, Cordero was arraigned for the charges in this case. On September 30, 2014, Cordero was transferred from Camp Barrett to Kearny Mesa Juvenile Hall. On January 8, 2015, at the end of his commitment term for his juvenile probation violation, Cordero was released from juvenile hall and then rebooked on the charges in the present case. As discussed, at the sentencing hearing, Cordero's counsel argued he was entitled to presentence custody credit for the period of time from September 30, 2014, to January 8, 2015, under the authority of In re Rojas (1979) 23 Cal.3d 152. The People opposed and the trial court denied Cordero's request.
DISCUSSION
As we have indicated, appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d 436, and has asked this court to review the record for error. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel has identified the following possible, but not reasonably arguable, issue to assist this court in our review of the record:
Whether the trial court erred in denying Cordero presentence custody credit for the period of time from September 30, 2014, to January 8, 2015. The time Cordero served in juvenile hall stemmed from the earlier probation violation, and was not attributable to proceedings related to the conduct for which Cordero was convicted in this case. Thus, the issue is not reasonably arguable.
Additionally, we have reviewed the entire record as mandated by Wende and Anders and have not identified any reasonably arguable issue for reversal on appeal.
Competent counsel has represented Cordero on this appeal.
4 DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
AARON, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12
- In Re Rojas Crim. 20595 · 1979-01-12