P. v. Plumley
Filed 10/1/13 P. v. Plumley CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
TERESA SUE PLUMLEY,
Defendant
and Appellant.
B246084
(Los
Angeles County
Super. Ct.
No. VA126389)
THE COURT:
name="_ftnref1" title="">*
Appellant
Teresa Sue Plumley appeals from the judgment in which a jury convicted her of
present, a felony (Pen. Code, § 459) and petty theft with a prior theft-related
conviction and a prior strike conviction, a felony (Pen. Code, §§ 666, subd.
(b), 484, subd. (a)). The jury also
found true the allegations that appellant had suffered prior convictions.
On the date
scheduled for sentencing, appellant submitted a letter to the trial court,
which was deemed to be a request for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Appellant was
upset that her lawyer had not called certain witnesses. Defense counsel explained that the potential
witnesses had been interviewed and were determined to be unhelpful to
appellant’s case, so the tactical decision was made not to call them to
testify. The trial court denied the
The trial court
sentenced appellant to seven years in state prison, consisting of the low term
of two years for the burglary conviction, plus five years for one prior
conviction (Pen. Code, § 667, subd. (a)(1)) (the trial court struck the true
findings on the other prior convictions).
A two-year sentence on the petty theft conviction was stayed pursuant to
Penal Code section 654. Appellant
received 145 days of custody credit, consisting of 127 actual days plus 18 days
of conduct credit.
We appointed
appeal. After examination of the record,
counsel filed an “Opening Brief†in which no arguable issues pertaining to the
convictions were raised. Appointed
counsel did, however, assert that appellant should have received one additional
day of conduct credit. We agree.
On July 26, 2013, we advised appellant
that she had 30 days within which to personally submit any
to consider. After requesting an
extension, on August 14, 2013,
appellant submitted a response in which she proclaimed her innocence, without
any citation to the record.
We have reviewed
the entire record and conclude that it provides a factual basis to support the
convictions. The prosecutor presented
the following evidence: Late on
September 2 or early September 3, 2012, Maryann Guerra (Guerra) was awakened by
the sound of something breaking. She got
up and saw appellant in her living room.
Appellant lived three doors away in the same apartment complex. Appellant was “angry and screaming,†“out of
control,†“scared,†“twitching,†and repeatedly asked for a cigarette. Guerra saw that her hall closet had been
emptied, a perfume bottle was broken on the floor, and table drawers and a box
had been opened. Guerra immediately
noticed that $500 in cash and a money order for $425 were missing from a
table. Guerra was going to use this
money to pay her rent of $925, which was due on September 3. Guerra also noticed that appellant was
wearing a chain on which Guerra kept a gold army eagle medallion that Guerra
had inherited from her father.
For 15 minutes,
Guerra and appellant talked and Guerra asked for the medallion back. Appellant would say that she would give it
back and then deny having it. Guerra
tried to remain calm, because appellant was “obviously not calm.†Appellant left the apartment promising to
bring the medallion back. For an hour,
Guerra sat outside her apartment waiting and trying to persuade appellant to
return the medallion while appellant wandered around. Guerra gave up hope of getting the money
back. Guerra did not want to call the
police because appellant’s aunt was her friend.
Guerra asked the aunt to look for the “golden eagle,†but it was never
recovered. Guerra eventually called the
police and appellant was arrested.
We
are satisfied that appellant’s appointed counsel has fully complied with his
responsibilities. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The
judgment is hereby modified to reflect that an additional day of conduct credit
is awarded for a total of 19 days of conduct credit. The judgment is otherwise affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
title="">*
Ashmann-Gerst, Acting P. J., CHAVEZ, J., FERNS, J.â€
†Judge of the
Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
name="_ftn2" title="">[1]
Appointed counsel stated the following in a footnote
in the brief: “A letter to the trial
court was mailed on May 31, 2013, requesting correction of conduct credits, with a copy sent to this
Court. On June 4, 2013, the trial court
issued a minute order stating that having read and considered counsel’s request
to correct the credits, it would ‘take[] no action until orders are received
from the appellate court.’ A true copy
[of the order] is attached as Exhibit A.â€
At our request, appellant’s appointed counsel provided a copy of the
letter he had sent to the trial court, which indicates that 15 percent of 127
computes to 19.05.
