The People v. Qualls CA5

Filed 9/24/13 P. v. Qualls CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F062679 Plaintiff and Respondent, (Super. Ct. No. F08903851) v.

BRYAN DAVID QUALLS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Rosendo Peña, Judge, and Brant K. Bramer, Commissioner.† Roger Nuttall for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J., and Franson, J. † Judge Peña presided over appellant’s change of plea and placed him on probation. Commissioner Bramer sentenced appellant to prison after he was found in violation of probation.

INTRODUCTION On September 18, 2008, appellant, Bryan Roger Qualls, pled guilty to one count of elder abuse (Pen. Code, § 368, subd. (b)(1))1 and admitted an enhancement for committing his offense on someone 70 years of age or older (§ 368, subd. (b)(3)(B)). A psychiatric evaluation was made of appellant prior to sentencing pursuant to Evidence Code section 460. On February 27, 2009, the trial court suspended imposition of sentence for five years and placed appellant on probation upon various terms and conditions, including that he spend 365 days in jail.2 On March 11, 2011, appellant waived his right to a contested hearing and admitted that he violated the terms and conditions of his probation. On April 6, 2011, the trial court denied appellant’s request for reinstatement of probation and sentenced him to prison for nine years and granted custody credits of 736 days. The court denied appellant’s request for a certificate of probable cause. Appellant contends the prosecutor misled the trial court concerning the sentencing option of having appellant waive his right to custody credits in exchange for a one-year commitment to county jail. Appellant argues the court should have considered this sentencing option. Appellant also contends his trial counsel was ineffective for failing to argue this sentencing option.3 We disagree with these contentions and affirm the judgment.