P. v. Tran

Filed 12/18/09 P. v. Tran CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Lac Tran appeals from a sentence imposed following his plea of no contest to one count of residential robbery in concert (Pen. Code, 213, subd. (a)(1)(A)).[1]

We appointed counsel to represent Tran in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Tran of his right to submit written argument in his own behalf within 30 days. We received a supplemental letter brief from Tran on November 19, 2009, in which Tran argues that his trial counsel was ineffective and that the trial court miscalculated his custody credits.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.

I. Factual[2] and Procedural Background

Tran, along with three codefendants, committed a string of home invasion robberies of residences which were operating as massage parlors. In each case, the defendants gained entry to the residences, brandished weapons, assaulted the victims and, on one occasion, tied up the victims. The defendants took money, electronics, credit cards and other personal belongings from the victims.

On the evening of December 9, 2005, San Jose police officers responded to a report of a home invasion armed robbery in progress at 598 North Capitol Avenue. The victims reported that Tran, along with codefendants Huy Trong Truong and Ha Que Nguyen, had parked their Audi A4 in the driveway and entered the residence, each armed with a handgun. Victim Jessica Wang Qin had observed two of the codefendants approach the residence and knock on the door, but since she did not recognize them, she did not let them in. A few minutes later, she heard a knock on the back door and recalled that a bedroom window was ajar. Victim Michelle Park was in the bedroom when the window suddenly opened and Truong pointed a handgun in her face. He climbed through the window and pushed Parks head to the ground.

Park remained on the floor until Truong told her to move to the living room. He then unlocked the front door and let Tran and Nguyen into the residence. The three defendants ordered all of the victims[3] onto the floor. They pointed their handguns at the victims heads and demanded cash and other valuables, while threatening to shoot the victims if they did not follow instructions. The defendants took cash, cellular phones, a passport, an iPod and possibly documents with the victims personal information.

The defendants were in the residence for 10 to 15 minutes, then left through the front door, walking towards their vehicle. San Jose police officers were already on the scene and ordered the defendants to stop and raise their hands. The defendants ran back into the house. Truong escaped through the back door while Tran and Nguyen climbed out the bedroom window through which Truong originally entered.

Police apprehended Truong as he was jumping over a fence, and he identified Nguyen and Tran as his accomplices. Tran was arrested several months later.

By information filed on July 27, 2007, Tran was charged with six counts of residential robbery in concert ( 213, subd. (a)(1)(A); counts 1-5, 7) and one count of attempted robbery in concert ( 664, 213, subd. (a)(1)(A); count 6). The information further alleged that the offenses were carried out to benefit a criminal street gang ( 186.22, subd. (b)(4)), that Tran personally used a firearm in committing the offenses ( 12022.53, subd. (b)) and that Tran was a principal in the offenses in which at least one of the principals personally used a firearm ( 12022.53, subds. (b), (e)(1)). It was further alleged that Tran was a felon in possession of a firearm ( 12021, subd. (a)(1); count 8), which offense was committed to benefit a criminal street gang ( 186.22, subd. (b)(4)). Finally, it was alleged that Tran had suffered four strike priors ( 667, subds. (b)(i), 1170.12), two serious felony priors ( 667, subd. (a)), and two prison priors ( 667.5, subd. (b)).

After jury selection commenced on March 4, 2009, a plea bargain agreement was reached in which Tran pleaded no contest to the robbery in concert charge in count 1, which was amended to include all named victims from counts 2 through 7, and admitted all of the charged strikes in exchange for an agreed-upon sentence of 25 years to life, a dismissal of the remaining charges and enhancements and an agreement by the prosecutor not to pursue unrelated check fraud charges.

At the May 8, 2009 sentencing hearing, Tran moved to withdraw his plea, on the grounds that he was under extreme pressure from his mother to accept the plea agreement and that he did not understand, at the time he entered the plea, that he could not withdraw it absent good cause. In connection with that motion, his trial counsel submitted a declaration stating that he did not recall discussing [with Tran] whether the plea could be withdrawn and on what grounds. The trial court denied Trans motion to withdraw his plea.

Tran was sentenced to a term of 25 years to life and was awarded 864 days of presentence credits, based on 736 actual days,[4] plus 110 days pursuant to the limited conduct credit provisions of section 2933.1. The trial court imposed a restitution fine of $10,000 ( 1202.4, subd. (b)), and a corresponding parole revocation fine which was suspended ( 1202.45). A security fee of $20 and a Criminal Justice Administration fee of $129.75 were also imposed, and the trial court dismissed the remaining charges and allegations.

Tran timely appealed, and in his amended notice of appeal indicated as follows: One, the appeal was taken from a guilty or no contest plea and was based on his sentence or other matters occurring after the plea, and two, he was seeking a certificate of probable cause based on the denial of his motion to withdraw his plea.

II. Discussion

Trans letter brief states that he received ineffective assistance of counsel, in two ways: One, his trial counsel failed to adequately explain to him that once he entered a plea of no contest, he could only withdraw it upon showing good cause; and two, his trial counsel failed to investigate his four prior strikes and request a Romero[5] hearing.

Trans ineffective assistance claims cannot be resolved on the appellate record before us. The California Supreme Court has repeatedly stressed that [if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected. [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

We also note that, with respect to the claim that trial counsel was ineffective for failing to make clear that a plea of no contest could only be withdrawn upon showing good cause, our research has disclosed no published authority in this state which so holds.

Tran also claims that he was erroneously awarded only 864 days of credit, including good time credit, even though he was in county jail for a total of three years.[6] He was arrested on May 4, 2006 and sentenced on May 8, 2009.

However, Tran overlooks the fact that he was also charged with violating parole due to the instant offense, and for absconding. He signed an optional waiver on May 19, 2006, and was ordered to serve 12 months for his parole violation, with a revocation release date of May 4, 2007. The probation report specifically notes that the parole violation involved mixed conduct, and thus Tran was not entitled to dual credits in relation to the instant offense. The issue of custody credits was never raised at either the change of plea hearing or at the sentencing hearing, nor was there any discussion of Trans 12 month sentence for violating parole.

A defendant sentenced either to county jail or to state prison is entitled to credit against the term of imprisonment for days spent in custody before sentencing as well as those served after sentencing as a condition of probation. ( 2900.5, subd. (a).) However, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted. (Id. at subd. (b).) In People v. Bruner (1995) 9 Cal.4th 1178, the court explained that where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a but for cause of the earlier restraint. Accordingly, when one seeks credit upon a criminal sentence for presentence time already served and credited on a parole or probation revocation term, he cannot prevail simply by demonstrating that the misconduct which led to his conviction and sentence was a basis for the revocation matter as well. (Id. at pp. 1193-1194.)

Tran does not dispute that his parole was revoked in part because he absconded, and thus has not met his burden to show that the conduct underlying his conviction was the sole reason for the disputed period of custody. (See, e.g., In re Bustos (1992) 4 Cal.App.4th 851, 855 [no credit against sentence for weapons violations, where custody also attributable to parole hold based probation violation].) As a result, we do not find that the court erred in denying him credit against his sentence for the current offenses.

III. Disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further unspecified statutory references are to the Penal Code.

[2] As Tran pleaded no contest, we derive the facts from the probation report and other documents in the record on appeal.

[3] According to the probation report, there were a total of eight victims in the residence, three of whom were male.

[4] According to the probation report, Tran was on active parole at the time of his arrest for the instant offense, and consequently he was subject to a parole hold. On May 19, 2006, Tran executed a waiver for parole violation proceedings and was ordered to serve 12 months in prison, with a revocation release date of May 4, 2007. As the parole violation was based on the instant offense plus absconding, the parole report concluded that Tran was not entitled to dual custody credits, and thus he did not begin earning credits for the instant offense until May 4, 2007.

[5]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[6] Tran was arrested on May 4, 2006 and sentenced on May 8, 2009.