P. v. Dean
Filed 7/27/12 P. v. Dean CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
GARY JOSEPH DEAN,
Defendant and
Appellant.
H037746
(Monterey
County
Super. Ct.
No. SS110839)
Defendant
Gary Joseph Dean appeals from a judgment of conviction entered after he pleaded
no contest to taking a vehicle without the owner’s consent (Veh. Code,
§ 10851, subd. (a) - count one) and evading an officer with willful
disregard (Veh. Code, § 2800.2 - count two).
Defendant also admitted that he had suffered a prior prison term within
the meaning of Penal Code section 666.5, subdivision (a) as alleged in count
one. He was sentenced to four years and
eight months in state prison and filed a timely notice of appeal.
I. Statement of Facts
On February 27, 2011, defendant stole a
car and was driving it in Monterey County.
A uniformed police officer was driving
behind defendant in a marked car. When
the officer turned on his siren and lights, defendant “floored it,” went
through two stop signs, and crashed the car.
II. Statement of the Case
On April 28, 2011, a complaint was
filed. Defendant was charged with taking
a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a) - count
one), evading an officer with willful disregard (Veh. Code, § 2800.2, subd. (a)
- count two), driving under the influence with two prior convictions (Veh.
Code, § 23152, subd. (a) - count three), driving while having a .08 percent or
higher blood alcohol level with two prior convictions (Veh. Code, § 23152,
subd. (b) - count four), driving with a suspended license for drunk driving with
one prior conviction (Veh. Code, § 14601.2, subd. (a) - count five), and
driving with a suspended license for refusal to take a blood alcohol test or
excessive blood alcohol level with one prior conviction (Veh. Code, § 14601.5,
subd. (a) - count six). In
connection with count one, three auto thefts with a prior conviction were
alleged pursuant to Penal Code section 666.5, subdivision (a). As to counts one and two, eight prison priors
were alleged pursuant to Penal Code section 667.5, subdivision (b). The following day, the trial court issued an
arrest warrant.
On October
18, 2011, defendant waived formal arraignment and entered a plea of not
guilty. On November 9, 2011, defendant
was advised of his rights to a jury trial, to remain silent, to confront
witnesses against him, and to present evidence on his behalf. After waiving his rights, defendant entered a
no contest plea to counts one and two and admitted the allegation pursuant to
Penal Code section 666.5, subdivision (a) as alleged in count one. In exchange for defendant’s plea, the
remaining counts were dismissed and the maximum penalty was set at four years
and eight months. The trial court
sentenced defendant to four years on count one and eight months on count two.
Discussion
Appointed appellate counsel has filed an opening brief
that states the case and the facts but raises no issues. Defendant has submitted written argument on
his own behalf.
Defendant contends that trial
counsel had assured him that he would “receive all of [his] presentence
credits” at sentencing, but the trial court erred in failing to award
presentence credits.
name="_ftnref1" title="">[1]
Here, the probation report states
that when defendant was arrested, he had absconded from parole supervision as
of October 21, 2011. Accordingly, a
parole hold was placed upon him. On
October 28, 2011, defendant accepted a 180-day parole revocation
commitment. His parole revocation
release date was January 14, 2012. Since
the conduct underlying his parole violation was independent of the criminal
conduct arising from the present case, he was not entitled to accrue credits
until January 15, 2012. (
1178.) Thus, the trial court did not
err.
Defendant next argues that the
trial court erred by sentencing him on count one to the upper term of four
years for a violation of Vehicle Code section 10851 when the upper term for
this offense is three years.
In connection with count one,
defendant admitted the allegation that he had previously been convicted of auto
theft pursuant to Penal Code section 666.5, subdivision (a). This statute sets the punishment as two,
three, and four years. Thus, there was
no error.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire
record and have concluded that there are no arguable issues on appeal.
The
judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Elia, Acting P. J.
_____________________________
Márquez, J.
name="_ftn1" title="">[1] Defendant
does not claim that he would not have entered his plea if he had known that he
was not entitled to presentence credits.
