P. v. Glassgow

Filed 7/27/06 P. v. Glassgow CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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Defendant Brett Joseph Glassgow entered a negotiated plea of guilty to manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)) in exchange for dismissal of the remaining counts, the prosecution's agreement not to file any priors and a stipulated midterm of five years in state prison. The trial court sentenced defendant accordingly and imposed, inter alia, a $175 criminal laboratory analysis fee (lab fee) and awarded 177 days of presentence custody credit.

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

In a footnote in the opening brief, defense appellate counsel, Deborah Prucha, notes that she sent a letter to the trial court requesting that the trial court award an additional three days of presentence custody credit and break down the $175 lab fee and to forward the amended abstract to this court and parties. The letter to the trial court is dated December 13, 2005. Defense appellate counsel filed the Wende brief the next day. This court did not receive any documentation reflecting that the changes had been made. Defense appellate counsel should have made her request to the trial court in a timely manner rather than wait until the day before she filed her Wende brief. Otherwise, counsel should not have filed a Wende brief at all. This manner of raising issues in a footnote is unacceptable. Future arguments raised only in footnotes will be rejected.

The trial court awarded presentence custody credits in accordance with the probation report which recommended 119 actual days for the period from April 16, 2005, through August 12, 2005, and 58 conduct days for a total of 177 days of presentence custody credit. According to the officer's affidavit of probable cause, defendant was arrested at 7:53 p.m. on April 15, 2005. The record on appeal does not support the conclusion that defendant was â€