P. v. Apodaca
Filed 2/15/13
P. v. Apodaca CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
MICHAEL DURAN APODACA,
Defendant and
Appellant.
F064677
(Super.
Ct. No. CRL003133)
OPINION
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Frank Dougherty, Judge.
Deborah
Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney
General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant,
Michael Duran Apodaca, appeals from a judgment entered after he pled no contest
to possession of a concealed dirk or
dagger (Pen. Code, § 12020, subd. (a)(4)).
pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), we affirm.
FACTUAL AND
PROCEDURAL HISTORY
On
March 6, 2010, at approximately 8:00 a.m., a Gustine police officer
saw Apodaca walking through an apartment complex. The officer detained Apodaca at gunpoint and
handcuffed him because Apodaca resembled his younger brother, a parolee at
large who had made it known that he would do anything to keep from going back
to prison. The officer asked Apodaca if
he had any weapons. Apodaca replied that
he did not and invited the officer to search him. The officer searched Apodaca and underneath a
sweatshirt that went down to Apodaca’s knees, the officer found a large knife
in a sheath. The officer placed Apodaca
under arrest, searched him again and found a small baggie containing 0.03 grams
of methamphetamine.
On
May 25, 2010, the district attorney filed a complaint charging Apodaca
with carrying a concealed dirk or dagger (count 1/§ 12020, subd. (a)(4)),
possession of methamphetamine (count 2/Health & Saf. Code, § 11377, subd.
(a)), a prior prison term enhancement (§ 677.5, subd. (b)), and having a prior
conviction within the meaning of the “Three Strikes†law (§ 667, subds.
(b)-(i)).
On April 22, 2011, Apodaca
pled no contest to possession of a concealed dirk and dagger in exchange for
the dismissal of the remainder of the complaint’s allegations and a stipulated
middle term of two years.
On June 24, 2011, Apodaca
failed to appear for sentencing.
On January 20, 2012, Apodaca
was back in custody and in accord with his plea agreement, the court sentenced
him to a two-year term.
Apodaca’s appellate counsel has
filed a brief which summarizes the facts, with citations to the record, raises
no issues, and asks this court to independently review the record. (Wende,
supra, 25 Cal.3d 436.) However, in a letter filed on June 29,
2012, Apodaca contends that the California Department of Corrections and
Rehabilitation (CDCR) is not granting him worktime credit against the term
imposed.
This issue is not properly before
us because the CDCR is the entity charged with calculating a prisoner’s
worktime credit. (In re Pope
(2010) 50 Cal.4th 777, 780, 781; see People
v. Brown (2012) 54
Cal.4th 314, 321, fn. 8, 322–323, fn. 11; In re Pacheco (2007) 155
Cal.App.4th 1439, 1441; In re Tate (2006) 135 Cal.App.4th 756, 759–760.)
An assertion the CDCR did not award a prisoner the worktime credit he is
entitled to does not usually identify an error in the judgment on review;
rather, “[s]uch
a
Further, following an independent
review of the record we find that no reasonably arguable factual or legal
issues exist.
DISPOSITION
The judgment is affirmed.
Wiseman, Acting P.J., Levy, J. and Peña, J.
statutory references are to the Penal Code.
