P. v. De Myers
Filed 9/7/06 P. v. De Myers CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ANDRE DE MYERS, Defendant and Appellant. | B184092 (Los Angeles County Super. Ct. No. LA042786) |
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Martin Herscovitz, Judge. Affirmed and remanded with instructions.
Jonathan B. Steiner and Richard L. Fitzer, under appointment by the Court of Appeal under the California Appellate Project, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Senior Assistant Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
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An information charged defendant and appellant Anthony Andre De Myers (defendant) with grand theft of personal property, in violation of Penal Code section 487, subdivision (a).[1] The information further alleged that defendant had a prior conviction in 1973 for a serious or violent felony (§§ 667, subds. (b) – (i); 1170.12, subds. (a) – (d)) and had served nine prior prison terms (§ 667.5, subd. (b).) Defendant pleaded not guilty and denied the special allegations.
Defendant subsequently waived his constitutional rights, pled no contest to the offense charged and admitted the prior strike allegation. At the hearing at which defendant's plea bargain was accepted, defendant's counsel stated that defendant's custody credit would be calculated from May 13, 2004. The trial court dismissed the prior prison term allegations and sentenced appellant to two years, doubled to four years as a second strike. Defendant was accorded 597 days of presentence custody credit, consisting of 399 days of actual custody and 198 days of conduct credit.
Defendant filed this appeal. Defendant also filed a request for a certificate of probable cause based on ineffective assistance of counsel, which the trial court denied.
We appointed counsel to represent defendant in this appeal. After examination of the record, counsel filed an opening brief asking this court to review the record independently in accordance with People v. Wende (1979) 25 Cal.3d 436. On August 29, 2005, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days in which to submit by brief or letter any contentions or issues he wished this court to consider. Defendant submitted a letter, filed on September 27, 2005, in which he contends that his Marsden[2] request for appointment of new counsel was improperly denied; that he was denied the opportunity to file a Romero[3] motion to strike the prior conviction allegation; and that the trial court did not correctly calculate his presentence custody credit.
Our independent review of the record discloses no error, except that this court cannot determine the basis for the trial court's calculation of defendant's custody credit. The record does not indicate the date of defendant's arrest. At defendant's April 6, 2005 sentencing hearing, defendant's counsel stated that custody credit should be calculated from May 13, 2004. Assuming this date was the correct date for calculating defendant's custody credit, defendant should have been accorded total presentence custody credit of 493 days, consisting of 329 days of actual custody and 164 days of conduct credit. The trial court accorded defendant a total of 597 days of presentence credit consisting of 399 days of actual custody and 198 days of conduct credit. There is nothing in the record to indicate how the trial court calculated defendant's custody credit, or how the trial court determined the amount of time defendant spent in actual custody. We therefore remand the matter to the trial court to again determine defendant's custody credit and to state the basis for that determination.
BACKGROUND
In September 2002, Griselda Madrid and her husband met defendant, who represented himself as a real estate businessman and the owner of apartment buildings. Ms. Madrid was looking for an apartment, and defendant offered to help her. At defendant's request, Ms. Madrid gave him a money order for $50, allegedly to pay for the cost of a credit check. Defendant subsequently told Ms. Madrid that he could help her find a house; took her and her husband to see a house; and requested an additional $800 to â€
