P. v. Conley
Filed 1/18/13 P. v. Conley
CA4/2
NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DANNY
JEROME CONLEY,
Defendant and Appellant.
E055691
(Super.Ct.No. RIF1102917)
OPINION
APPEAL
from the Superior Court of Riverside
County. Charles J.
Koosed, Judge. Affirmed.
Jan
Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
INTRODUCTION
On
September 7, 2011, an information charged defendant
and appellant Danny Jerome Conley with two counts of unlawfully selling cocaine
under Health and Safety Code section 11352, subdivision (a) (counts 1 &
2). As to both counts, the information
also alleged that defendant was convicted of a prior felony for violating
Health and Safety Code section 11352, subdivision (a), within the meaning of
Health and Safety Code section 11370.2, subdivision (a). The information further alleged that
defendant had suffered 11 prior prison term convictions, within the meaning of
Penal Code section 667.5, subdivision (b).
On
November 30, 2011, defendant moved to relieve
counsel and to represent himself. The
trial court addressed defendant’s concerns with his attorney, but denied the
request to relieve counsel. As for
defendant’s request to represent himself, the trial court suggested that
defendant discuss the matter further with his attorney.
Later
that same day, in a different courtroom, the trial court reviewed defendant’s
petition to represent himself. The trial
court explained that defendant would be held to the same standard as an
attorney and could not claim ineffective assistance on appeal. Defendant decided to consider this
information over lunch recess. When
court reconvened, defendant withdrew his request to represent himself.
On
January 10, 2012, defendant entered a guilty plea
as to count 1 and admitted the enhancement alleged in count 1. Defendant also admitted the first prior
prison term enhancement. On that same day,
the court sentenced defendant to eight years—the midterm of four years on count
1, plus three years for the prior drug conviction enhancement and one year for
the prior prison term, to run consecutively.
Defendant was ordered to serve four years in county jail followed by
four years on supervised release. The
court awarded defendant credit for time served of 154 actual days plus an
additional 154 days under Penal Code section 2933, former subdivision
(e)(1). The court then dismissed count 2
and struck the remaining enhancements.
On
February 21, 2012, defendant filed his notice of
appeal. That same day, the trial court
granted defendant’s certificate of probable cause.
STATEMENT OF FACTS
On
March 30, 2011, Detective Jayson Wood was
conducting undercover surveillance for drug activity in a Rite-Aid parking lot
in Riverside County. He
observed defendant and another individual engaged in what appeared to be a
hand-to-hand drug transaction. Based
upon his observations, a confidential reliable informant was given $40 and
instructed to attempt to purchase drugs from defendant. The informant approached defendant and asked
to purchase “two doves,†which meant $40 worth of rock cocaine. The informant purchased $40 worth of rock
cocaine from defendant. This drug
transaction was videotaped.
On
April 22, 2011, at the direction of Detective
Wood again, the informant purchased 0.8 grams of rock cocaine from defendant.
ANALYSIS
After defendant appealed, and upon
his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority
of People
v. Wende (1979) 25 Cal.3d 436 and Anders
v. California (1967) 386 U.S. 738 setting forth a statement of the case, a
summary of the facts, and potential arguable issues, and requesting this court
to undertake a review of the entire record.
We offered
defendant an opportunity to file a personal supplemental brief, and he has done
so. In his
three-page handwritten brief, defendant argues that he should be allowed to
withdraw his guilty plea because he is only entitled to 231 days of presentence
credit, but the parties agreed that defendant would receive 308 days of
presentence credit. Pursuant to the
mandate of People v. Kelly (2006) 40
Cal.4th 106, we have independently reviewed the record for potential error.
In this case, under
a negotiated plea agreement, the parties agreed that defendant would receive a
total of 308 days of presentence credit—154 days for actual credit and 154 days
of credit under Penal Code section 2933.
At the sentencing hearing, the trial court ordered precisely what the
parties bargained for in the plea agreement—308 days of presentence
credit. Defendant, however, makes an
argument that his presentence credit should be reduced to 231 days under the
operative law at the time he was sentenced; and then, he should be allowed to
withdraw his guilty plea because he pled guilty based upon being awarded 308
days of presentence credit, not 231 days.
Defendant’s argument is without merit.
Here, the parties
agreed that defendant would be awarded 308 days of presentence credit, which
was more beneficial to him than what he would have received without the plea
agreement. Defendant, therefore, has
waived his right to argue that he should be awarded a different number of days
of presentence credit. In the context of
a plea bargain, the question of the scope of a waiver is usually approached as
a question of contract interpretation: “to what did the parties expressly or by
reasonable implication agree?†(
1152, 1157.) “As a general proposition,
a broad or general waiver, such as ‘I waive my appeal rights,’ will include
error occurring prior to the waiver, but not subsequent error because the
defendant could not make ‘a knowing and intelligent waiver of the right to
appeal any unforeseen or unknown future error . . . .’†(Ibid.,
quoting People v. Vargas (1993) 13
Cal.App.4th 1653, 1662 [Fourth Dist., Div. Two].) If, however, the defendant agrees to a plea
bargain which includes a specific or indicated sentence, “as opposed to a
[sentencing] matter [that is] left open or unaddressed by the deal,†and if
that is the sentence actually imposed, the waiver will foreclose appellate
review of the sentence. (
86; see also Vargas, at p. 1662;
Here, the facts
show that defendant voluntarily agreed to credit for time served of 154 actual days
plus an additional 154 days under Penal Code section 2933, former subdivision
(e)(1), for a total of 308 days. Defendant cannot now argue that he is only
entitled to presentence credits of 231 days in order to withdraw his guilty
plea.
We have now concluded our independent review of the
record and found no arguable issues.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.
name="_ftn1" title=""> [1] Since defendant pled guilty
prior to trial and no probation report was requested, the statement of facts is
taken from the preliminary hearing.
