P. v. Hickman

Filed 1/22/09 P. v. Hickman CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Beal Xavier Hickman pled no contest to a single count of felony vandalism under Penal Code section 594, subdivision (a). Pursuant to the plea agreement, the court placed him on felony probation conditioned upon his serving one year in the county jail, with probation to terminate upon the completion of that term. The court denied appellant presentence credits because the time he spent in custody before sentencing was attributable to a parole hold/parole violation. Appellant filed a notice of appeal based on [the] denial of credits concurrent with his parole violation. Court-appointed counsel has briefed no issues, but has asked this court to independently review the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm.

I. BACKGROUND[1]

On August 30, 2007, at about 4:00 a.m., Michael Johnsons roommate saw someone outside busting up Johnsons car. She woke Johnson and he discovered the windshield of his car had been smashed. Johnson called the police to report the damage. He informed the officers who responded that he had an argument with appellant earlier in the day and suspected appellant might be the person responsible.

About half an hour later, officers were dispatched again to Johnsons home after police received a report of a vandalism in progress. Upon their arrival, they saw a Honda sedan parked in the middle of the street with a considerable amount of body damage. Johnson said he had been inside his home when appellant knocked on his door. Johnson did not go outside, but watched as appellant drove up in a Honda sedan and began jumping on the roof and window of Johnsons car. Appellant tried to get back into his Honda to drive away, but ran away after he was prevented from doing so by Johnson. Johnson could not explain the damage to the Honda. The amount of damage to Johnsons car exceeded $400.

The investigating officers learned that appellant was on active parole and contacted his parole agent, who issued a parole hold. Appellant was taken into custody on December 22, 2007, having failed to report to his parole officer since the incident leading to the current charges. His parole was violated based on both the new offense and his failure to report. Appellant had served 58 actual days in local custody between the time of his arrest and the date of sentencing.

II. DISCUSSION

As required by People v. Kelly (2006) 40 Cal.4th 106, 124 (Kelly), we affirmatively note that appointed counsel has filed a Wende brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and find none.

Appellant did not obtain a certificate of probable cause and could not challenge the validity of his no contest plea on appeal. (Pen. Code,  1237.5; People v. Panizzon (1996) 13 Cal.4th 68, 74.) In any event, the police report provides an adequate factual basis for the no contest plea on the vandalism count. (See People v. French (2008) 43 Cal.4th 36, 50.) The record also shows that appellant was advised of and expressly waived his constitutional rights before entering that plea.

Although appellant sought presentence credits for the time he was in custody after his arrest, that custody was based in part on his having absconded from parole. Appellant did not carry his burden of establishing that he would not have been in custody but for the conduct leading to the current charges. (See Pen. Code,  2900.5, subd. (b); People v. Bruner (1995) 9 Cal.4th 1178, 1191.)

Based on our review of the record, we are satisfied that appellants appointed attorney has fully complied with the responsibilities of counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; Wende, supra, 25 Cal.3d at p. 441.)

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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[1] Because appellant pled no contest to the charges before a trial or preliminary hearing was held, the facts are taken from the probation report filed in this case.