People v. Leon CA4/2 ( 2014 )

Filed 5/30/14 P. v. Leon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059828
v. (Super.Ct.Nos. RIF1203574 &
RIF1202636 & RIF 1203602 &
ARMANDO J. LEON, RIF 1209871)
Defendant and Appellant. OPINION
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
I
STATEMENT OF THE CASE AND FACTS
A. Case No. RIF1203574
On March 25, 2013, an amended information charged defendant and appellant
Armando Leon with stealing tools from Home Depot on June 1, 2012, in violation of
Penal Code1 section 484, subdivision (a), with a prior second degree burglary conviction
within the meaning of section 666, subdivision (b)(1). The information also alleged that
defendant suffered a prior serious or violent felony conviction within the meaning of
sections 667, subdivisions (c) through (e)(1), and 1170.12, subdivision (c)(1), with regard
to a 1996 conviction for first degree burglary under section 459. The information further
alleged that defendant suffered five prior prison terms within the meaning of section
667.5, subdivision (b).
B. Case No. RIF202636
On November 5, 2012, an information charged defendant with receiving stolen
property under section 496, subdivision (a), with regard to an incident on June 6, 2012
(count 1); and failing to appear in violation of section 1320, subdivision (b) (count 2).
With regard to count 2, the information also alleged that defendant committed the offense
while released from custody under section 12022.1. The information further alleged that
defendant suffered five prior prison terms within the meaning of section 667.5,
subdivision (b); and a prior strike offense, within the meaning of sections 667,
1 All statutory references are to the Penal Code unless otherwise specified.
2
subdivisions (c) through (e)(1), and 1170.12, subdivision (c)(1). The prior convictions
alleged were the same prior convictions alleged in case No. RIF1203574.
C. Case No. RIF1203602
On March 25, 2013, an amended information charged defendant with one count of
stealing merchandise from Wal-Mart on June 23, 2012, in violation of section 484,
subdivision (a), having previously been convicted of second degree burglary within the
meaning of section 666, subdivision (b)(1), and having suffered a prior serious or violent
felony. The information also alleged that defendant committed the offense while released
from custody under section 12022.1. The information further alleged that defendant
suffered five prior prison terms under section 667.5, subdivision (b), and a prior strike
offense under sections 667, subdivisions (c) through (e)(1), and 1170.12, subdivision
(c)(1).
D. Case No. RIF1209871
On March 25, 2013, a first amended information charged defendant with receiving
stolen property under section 496, subdivision (a) (count 1); and violating Health and
Safety Code section 11550, subdivision (a) (count 2), a misdemeanor – willfully and
unlawfully using and being under the influence of a controlled substance. As to count 1,
the information alleged that defendant committed the charged offense while released
from custody on case Nos. RIF1203574, RIF1202636, and RIF 1203692, pursuant to
section 12022.1. The information further alleged that defendant suffered five prior prison
terms under section 667.5, subdivision (b), and a prior strike offense under sections 667,
subdivisions (c) through (e)(1), and 1170.12, subdivision (c)(1).
3
E. Plea and Sentence
On March 27, 2013, defendant entered a “plea to the sheet” in each of the cases.
Defense counsel did not join in the plea.
At the sentencing hearing on May 17, 2013, the trial court denied defendant’s
request to strike the prior strike offense under People v. Superior Court (Romero) (1996)
13 Cal. 4th 497. The trial court then pronounced defendant’s sentence in each case as
follows:
In case No. RIF1209871, the trial court imposed a 13-year sentence as follows:
the middle term of two years on count 1, doubled for the strike prior, plus a concurrent
90-day term on count 2. The court also imposed consecutive one-year terms on each of
the five prior prison allegations. The trial court struck one of the three section 12022.1
enhancements, and imposed consecutive two-year terms on the remaining two section
12022.1 enhancements.
In case No. RIF1203574, the trial court imposed a one-year and four-month prison
sentence to run consecutively to case No. RIF1209871, as follows: one-third the middle
term of two years, doubled. The court stayed punishment on the five prior prison
enhancements previously imposed in case No. RIF1209871.
In case No. RIF1202636, the trial court imposed a two-year and eight-month state
prison sentence to run consecutively to case No. RIF1209871, as follows: one-third the
middle term of two years on count 1, doubled, plus one-third the middle term of two
years on count 2, doubled. The trial court stayed punishment on the five prior prison
4
term enhancements previously imposed in case No. RIF1209871. The trial court
indicated that it was striking the additional section 12022.1 enhancement.
In case No. RIF1203602, the trial court imposed a one-year and four-month prison
sentence to run consecutively to case No. RIF1209871, as follows: one-third the middle-
term of two years on count 1, doubled. The trial court stayed punishment on the
previously imposed two-year term for the section 12022.1 enhancement, and likewise
stayed punishment on the previously imposed one-year terms for each of the five prior
prison term enhancements.
The trial court awarded custody credits in each case, consistent with the probation
officer’s recommendations. The prosecutor questioned the calculation of presentence
custody credits, indicating the credits were duplicative. The court invited the parties to
submit authority on the issue, and the court would make the appropriate corrections.
On July 3, 2013, the prosecutor submitted a letter brief to the trial court. It argued
that the court incorrectly awarded defendant duplicative custody credits. Relying on
People v. Callahan (2006) 144 Cal. App. 4th 678, People v. Bruner (1995) 9 Cal. 4th 1178,
In re Joyner (1989) 48 Cal. 3d 487, and section 2900.5, the prosecutor argued that
defendant was not entitled to full credits in each of his four criminal cases because he
could not demonstrate that, in each case, he would have been free from custody “but/for”
the conduct for which he was sentenced. The prosecutor requested that the trial court
hold a hearing to reconsider the custody credit issue.
On August 9, 2013, the trial court held a hearing on the issue of defendant’s
custody credits. The trial court agreed that defendant was not entitled to any presentence
5
credit for a period of custody already credited against a sentence imposed on unrelated
charges where defendant could not show that he would have been at liberty during that
period. The court recalculated the amount of presentence custody credits in each case
and ordered the abstracts of judgment be amended accordingly. The court also ordered
the minutes in case No. RIF1203602 be corrected to accurately reflect the one-year and
four-month prison term imposed; and the minutes and abstract of judgment in case No.
RIF1203574 be corrected to accurately reflect the one-year and four-month prison term
imposed.
On October 1, 2013, defendant filed a notice of appeal. His appeal “is based on
the sentence or other matters occurring after the plea that do not affect the validity of the
plea.” Defendant also argues that his “sentence amounts to cruel + unusual punishment
(sentence is excessive)[;]” and the court erred in denying his Romero motion. Defendant
filed a request for certificate of probable cause, which the court granted.
II
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal. 3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts and potential arguable issues, and requesting this court to
undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. On May 12, 2014, defendant filed a two-page handwritten supplemental
6
brief. In his brief, defendant essentially argues that his sentence is excessive. Defendant
states, “[o]verall, one thing I can say is that I never denied any of the charges I was
convicted of. And sure I’ve been in and out of prison a few times for drugs, but don’t
you think 18 [years and] 4 [months] is a bit excessive for petty theft/poss of stolen
property? I never hurt nobody but myself and of course my 9 [year] old son, by the bad
[decisions] I have made in the past. And by sending me to prison for the next decade is
not going to change me or make me a better person. If anything, it’s just going to make
me bitter at the ‘judicial system’ for not being fair with there [sic] sentancing [sic] tatics
[sic]. For there is no ! Rehablitation [sic]! in prison.” In his brief, however, defendant
fails to provide any legal basis for this argument. “[E]very brief should contain a legal
argument with a citation of authorities on the points made. If none is furnished on a
particular point, the court may treat it as waived, and pass it without consideration.
[Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal. 4th 764, 793.) We, thereby,
deem any arguments made by defendant waived. Moreover, defendant forfeited the
contention that his sentence was excessive for his crimes by failing to raise the issue
below. (People v. Em (2009) 171 Cal. App. 4th 964, 971, fn. 5; People v. Norman
(2003)109 Cal.App.4th 221, 229.)
Notwithstanding defendant’s waiver of this issue, we find that defendant’s
sentence is not excessive or disproportionate when compared to other crimes for which
substantial sentences have been imposed and upheld on appeal. (Rummel v. Estelle
(1980) 445 U.S. 263, 265-266, 268-286 [life sentence for credit card fraud of $80,
passing a $28.36 forged check, and obtaining $120.75 by false pretenses not cruel and
7
unusual]; Harmelin v. Mich. (1991) 501 U.S. 957, 961, 995 [life sentence for possession
of 672 grams of cocaine not violative of Eighth Amendment]; Ewing v. California (2003)
538 U.S. 11, 18, 30-31 [25-years-to-life under Three Strikes law for theft of three golf
clubs worth $399 each upheld]; Lockyer v. Andrade (2003) 538 U.S. 63, 66 [two
consecutive 25-years-to-life terms for two separate thefts of less than $150 worth of
videotapes upheld].)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have
conducted an independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
8