P. v. Espinoza























Filed 4/11/13 P. v. Espinoza CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE




>

THE PEOPLE, Plaintiff and Respondent, v. FRANK ESPINOZA, Defendant and Appellant.

G047070 (Super. Ct. No. 11NF2507) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Craig E. Robison, Judge. Affirmed.

John L. Staley, under
appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for
Plaintiff and Respondent.

* * *



We appointed href="http://www.mcmillanlaw.com/">counsel to represent defendant on
appeal. Counsel filed a brief which set
forth the facts of the case. Counsel did
not argue against the client, but advised the court no issues were found to
argue on defendant’s behalf. Defendant
was given 30 days to file written argument in defendant’s own behalf. That period has passed, and we have received
no communication from defendant.

Defendant
Frank Espinoza pleaded guilty to violating Penal Code section 273.5,
subdivisions (a), (e)(2) domestic battery, and Penal Code section 166,
subdivision (c)(1) violation of a protective
order. (All statutory references are
to the Penal Code.) In support of his
guilty plea, defendant offered the following statement which was signed by both
him and his lawyer: “On August 13, 2011,
in Orange County, I willfully and unlawfully inflicted corporal injury resulting
in a traumatic condition upon Elizabeth Blanco-Haros, my girlfriend who I was
living with and cohabiting with at the time, by grabbing her by the hair and
arms and dragging her on the floor causing visible injuries to her body. [¶] I also admit that I was previously
convicted of a violation of Penal Code section 243 [subd.] (e)(1) on March 11, 2010 in Los Angeles
Superior Court case number CITOJB0203001.
[¶] On October 12, 2012,
in Orange County,
I willfully, knowingly, and unlawfully, violated a protective and stay away
order issued by a court pursuant to Penal Code section 136.2 in a pending href="http://www.mcmillanlaw.com/">criminal proceeding involving domestic
violence as described in Penal Code section 13700, by contacting Elizabeth
Blanco-Haros knowing that my actions were in violation of the court
order.” Prior to accepting his guilty
plea, the court read those facts aloud to defendant and asked him whether those
facts are true and correct. Defendant
responded: “Yes, Sir.”

Defendant
was advised of his rights and the possible consequences of pleading
guilty. The court found he understood
his rights and that he waived them. The
maximum sentence defendant faced for committing the crimes he admitted was four
years in prison. The court suspended
imposition of sentence and placed defendant on formal probation for five
years. Defendant accepted the terms and
conditions of probation. One of the
terms and conditions of probation was serving 180 days in jail.

At
the hearing, the following colloquy took place between the court and defense
counsel:

The
court: “Serve 180 days in county jail,
with credit for 24 days actual, 24 days good time/work time. You have 48 days — well, this is a 4019
calculation that is going to be different based on the day of the
violation. He gets two for four instead
of two for two.”

Defense
counsel: “Our position, of course, your
Honor, it should be retroactively applied.”

The
court: “I understand that, but now we
are starting to get appellate decisions that disagree with that position, so
before I finish pronouncing the sentence I am going to amend the credits to
reflect the 4019 statute in effect August 13.
You want to talk to him about that?”

Defense
counsel: “Hold on a second.”

The
court: “Okay.”

Defense
counsel [after a discussion with defendant]:
“Your Honor, I have spoken with my client, that is not going to
frustrate the plea, but I will say I would like to, for the record, lodge an
objection to that. I know that there is
an appeal waiver indicated on the Tahl form, but we would like to reserve the
argument on the credits only potentially in the future.”

The
court [after being told the prosecutor had no objection]: “Okay.
You have 24 days of actual credit, 12 days of good time/work time, for
36 days of custody credit.”

Section
4019 has been amended several times in recent years. The instant crimes were committed in August
2011. The iteration of section 4019 in
effect at that time stated in its subdivision (f): “It is the intent of the Legislature that if
all days are earned under this section, a term of six days will be deemed to
have been served for every four days spent in actual custody.” (Former § 4019; Stats. 2010, ch. 426
§ 2, p. 2088.) In >People v. Brown (2012) 54 Cal.4th 314,
the California Supreme Court held section 4019 is to be applied prospectively
and that equal protection does not require otherwise, stating: “[T]he important correctional purposes of a
statute authorizing incentives for good behavior [citation] are not served by
rewarding prisoners who served time before the incentives took effect and thus
could not have modified their behavior in response.” (Id.
at pp. 328-329.)

We
conclude the trial court did not err in calculating defendant’s credits, and
after examining the record find no other arguable
issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.







MOORE,
J.



WE CONCUR:







RYLAARSDAM,
ACTING P. J.







FYBEL, J.