P. v. Roy
Filed 6/30/08 P. v. Roy CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. CEDRIC PAUL ROY, Defendant and Appellant. | F053533 (Super. Ct. No. BF117215A) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
On December 8, 2006, James Enriquez was pumping gas at a gas station in Bakersfield when appellant, Cedric Paul Roy, attacked him from behind and knocked him to the ground. As the two men struggled, Roy stated, Give me your wallet. Roy stabbed Enriquez three times in the face, took his wallet, and fled. Officers who arrived on the scene searched the surrounding area and located Roy, who fit the description of the robber provided by Enriquez. Roy fled but was taken into custody after a struggle. Roy had blood on his pants. A search of his person uncovered .8 grams of cocaine base, $304 in paper currency, and an empty wallet.
On February 9, 2007, the district attorney filed an information charging Roy with robbery (count 1/Pen. Code, 212.5, subd. (c)), assault with a deadly weapon (count 2/Pen. Code, 245, subd. (a)(1)), resisting arrest (count 3/Pen. Code, 148, subd. (a)(1)) and six prior prison term enhancements (Pen. Code, 667.5, subd. (b)). Counts 1 and 2 also alleged an arming enhancement (Pen. Code, 12022, subd. (b)) and a great bodily injury enhancement (Pen. Code, 12022.7, subd. (a)).
On March 29, 2007, Roy pled no contest to robbery and admitted a great bodily injury enhancement and a prior prison term enhancement in exchange for the dismissal of the remaining counts and enhancements and a stipulated seven-year term, the middle term of three years on the robbery count, a three-year great bodily injury enhancement, and a one-year prior prison term enhancement.
On May 30, 2007, Roy informed the court that he wished to withdraw his plea.
On June 5, 2007, the court appointed Attorney Troy Childers to investigate the possibility of filing the motion on Roys behalf.
On July 3, 2007, Childers advised the court that he had reviewed the record in the matter and interviewed Roys first defense counsel and did not find a basis for Roy to withdraw his plea. Roy responded that he reached a plea agreement for six years with half-time credit at the pre-preliminary hearing and that defense counsel was now trying to tell him that Judge Hoover, the judge who presided over the pre-preliminary hearing, rejected it when in fact the victim had rejected it. The court continued the hearing and agreed to review the record and speak with Judge Hoover.
On July 11, 2007, the court explained to Roy that it reviewed the record, contacted Judge Hoover, and determined there was no confirmed deal of six years. The court then sentenced Roy to the aggregate seven-year term.
On August 14, 2007, the trial court granted Roys request for a certificate of probable cause.
Roys appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a supplemental brief filed on April 10, 2008, Roy contends: 1) his defense counsel provided ineffective representation because he told Roy the prosecutor was a personal friend and he was not going to file any motions or oppose anything because the prosecutor had DNA evidence; 2) the police failed to give him his Miranda[1]rights before questioning him; and 3) the pre-indictment lineup violated his right to counsel. These issues are not cognizable on appeal because they rely on evidence outside the record. (People v. Seaton (2001) 24 Cal.4th 598, 634 [defendants claim was not properly before the court because it relied on evidence outside the record].) Moreover, Miranda issues and issues involving the fairness of a pretrial lineup are not cognizable on appeal following a guilty plea even if the defendant obtains a certificate of probable cause. (People v. Whitfield (1996) 46 Cal.App.4th 947, 959; People v. Mink (1985) 173 Cal.App.3d 766, 770.)
Nevertheless, our review of the record disclosed that the court erred in its award of presentence custody credit. The court awarded Roy a total of 237 days of presentence custody credit consisting of 206 days of actual custody credit and 31 days of conduct credit. Roy was arrested in this matter on December 8, 2006, and remained in custody through the date of his sentencing hearing on July 11, 2007. Thus he was entitled to a total of 216 days of actual custody credit and 32 days of conduct credit (216 x 15% = 32.4 days) for a total of 248 days of presentence custody credit (216 days + 32 days = 248 days).
Further, following independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is modified to award Roy 248 days of presentence custody credit as calculated above. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
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*Before Vartabedian, Acting P.J., Cornell, J., and Levy, J.
[1]Miranda v. Arizona (1966) 384 U.S. 436.
