P. v. Weddington

Filed 6/18/08 P. v. Weddington 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Counsel for appellant Hasaan Saleem Weddington has filed a brief raising no specific issues and asking for our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Having conducted such a review, we conclude no arguable issues exist on appeal and affirm. Counsel sent notice to appellant of his right to file a brief in his own behalf. No such brief was filed.

FACTS

On July 5, 2006, appellant pled no contest to two felony counts: assault with a semiautomatic firearm (Pen. Code,  245, subd. (b)), and criminal threats (Pen. Code,  422). As to each, he admitted the use of a firearm (Pen. Code,  12022.5, subd. (a)). He was placed on probation and ordered, inter alia, to have no contact with the victim. On May 25, 2007, following denial of a Marsden[1] motion, appellant admitted that he had violated his probation by failing to obey the stay away order. He agreed to a mid-term sentence of six years in prison on the assault with a low-term, sixteen-month sentence for the threats to run concurrently.[2] The firearm enhancements would be stricken. Thereafter, appellant sought to withdraw his admission of a probation violation. New counsel was appointed for appellant, and counsel was provided with a transcript of the Marsden hearing. A formal motion to withdraw the admission was filed, alleging that appellant had been misinformed of the consequences of his admission. Counsel represented to the court that he had reviewed the transcript of the Marsden hearing and nothing therein was relevant to the motion to withdraw the admission.[3]

Appellant testified that he had been misinformed by previous counsel about the amount of time he would actually serve on a six-year sentence in light of his custody credits. The court rejected appellants testimony and denied the motion. Appellant was sentenced to the mid-term of six years for the assault and a concurrent two-year, low-term sentence for the threats. Although, as noted above, the transcript of the admission of the probation violation indicates the concurrent sentence for the second count would be a low term of 16 months, the low term for criminal threats is, in fact, two years. At the time of sentencing, appellants counsel agreed that the original agreement had been for the low term on the second count. The enhancements were stricken. Appellant was awarded 512 days of actual custody credit and 256 days of conduct credits under Penal Code section 4019, for a total of 768 days.

Having reviewed the entire record, we conclude that no arguable issues exist on appeal. We note that the one point of confusion in the recordthe length of the low-term concurrent sentence on the second countwould not be the basis of an issue on appeal. Had appellant or his counsel raised the discrepancy at the time of sentencing, appellant would have been unable to demonstrate that he was prejudiced by the misstatement of the length of the concurrent sentence for the second count because at the time of sentencing his custody credits were such that the two-year sentence had already been served.

The judgment is affirmed.

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REARDON, J. *

We concur:

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SIMONS, ACTING P. J.

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NEEDHAM, J.

* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1]People v. Marsden (1970) 2 Cal.3d 118.

[2] Although the transcript of the hearing indicates an agreement to a 16-month concurrent term, the waiver signed by appellant indicates simply concurrent low term. The on-the-record colloquy at the time of the admission was, as follows: THE COURT: and that Count 2 would run concurrent to Count 1, and the low term of [sic] is that 16 [] [THE PROSECUTOR]: Sixteen months. [] [DEFENSE COUNSEL]: Sixteen months.

[3] We, too, have reviewed the record of the Marsden motion and agree that nothing therein was relevant to the motion to withdraw the admission, nor do any other arguable appellate issues appear.