The People v. Plumley CA2/2

Filed 10/1/13 P. v. Plumley CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B246084

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA126389) v.

TERESA SUE PLUMLEY,

Defendant and Appellant.

THE COURT:*

Appellant Teresa Sue Plumley appeals from the judgment in which a jury convicted her of first degree burglary with a person present, a felony (Pen. Code, § 459) and petty theft with a prior theft-related conviction and a prior strike conviction, a felony (Pen. Code, §§ 666, subd. (b), 484, subd. (a)). The jury also found true the allegations that appellant had suffered prior convictions. On the date scheduled for sentencing, appellant submitted a letter to the trial court, which was deemed to be a request for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Appellant was upset that her lawyer had not called certain

* ASHMANN-GERST, Acting P. J., CHAVEZ, J., FERNS, J.†

† Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

witnesses. Defense counsel explained that the potential witnesses had been interviewed and were determined to be unhelpful to appellant‟s case, so the tactical decision was made not to call them to testify. The trial court denied the Marsden motion. The trial court sentenced appellant to seven years in state prison, consisting of the low term of two years for the burglary conviction, plus five years for one prior conviction (Pen. Code, § 667, subd. (a)(1)) (the trial court struck the true findings on the other prior convictions). A two-year sentence on the petty theft conviction was stayed pursuant to Penal Code section 654. Appellant received 145 days of custody credit, consisting of 127 actual days plus 18 days of conduct credit. We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an “Opening Brief” in which no arguable issues pertaining to the convictions were raised. Appointed counsel did, however, assert that appellant should have received one additional day of conduct credit. We agree.1 On July 26, 2013, we advised appellant that she had 30 days within which to personally submit any contentions or issues that she wished us to consider. After requesting an extension, on August 14, 2013, appellant submitted a response in which she proclaimed her innocence, without any citation to the record. We have reviewed the entire record and conclude that it provides a factual basis to support the convictions. The prosecutor presented the following evidence: Late on September 2 or early September 3, 2012, Maryann Guerra (Guerra) was awakened by the sound of something breaking. She got up and saw appellant in her living room. Appellant lived three doors away in the same apartment complex. Appellant was “angry