California Court of Appeal Nov 21, 2013 No. E058228Unpublished
Filed 11/21/13 P. v. Kozloff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E058228
v. (Super.Ct.No. INF1203130)
CORY JAMES KOZLOFF, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Victoria E. Cameron,
Judge. Affirmed.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Cory James Kozloff appeals after he pleaded guilty to
one count of robbery and one count of child abuse, with allegations of weapon use with
respect to the robbery and a prior strike conviction. We affirm the judgment.
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FACTS AND PROCEDURAL HISTORY
Because defendant pleaded guilty at an early stage of the proceedings, no record
has been developed to describe the circumstances of the charged offenses. On
December 26, 2012, however, a felony complaint was filed alleging that defendant had
committed four offenses: Count 1 alleged that defendant had robbed Jane Doe, and that,
in the commission of the offense, he was armed with a deadly or dangerous weapon
(pepper spray). This count apparently arose from a robbery at a pizza business, and $800
was taken from an employee. Count 2 alleged a second count of robbery of Jane Doe, on
the same date (Dec. 17, 2012) as alleged in count 1. Count 3 alleged a violation of Penal
Code section 273a, subdivision (a), child endangerment as to John Doe. Count 4 alleged
a felony charge of methamphetamine possession (Health & Saf. Code, § 11377,
subd. (a)). The complaint also alleged that defendant had suffered one prior strike
conviction, for burglary, and two prior prison term enhancements.
About one month after the complaint was filed, defendant agreed to change his
plea as the result of a plea bargain. Defendant agreed to plead guilty to count 1, one of
the robbery counts, and count 3, the child abuse charge. Defendant admitted both the
weapon enhancement in count 1, and the strike prior. The plea specified that defendant
would receive a sentence of five years.
At the change-of-plea and sentencing hearing, defense counsel explained the plea
agreement; that defendant would plead guilty to counts 1 and 3, and the sentence to be
imposed would be the low term on each count, doubled because of defendant’s prior
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strike, for a total of four years each. The weapon enhancement on count 1 would result in
one additional year. The sentences on counts 1 and 3 would be served concurrently, so
that defendant would serve five years in prison. His custody credits were calculated at
29 days, consisting of 26 days of actual custody, plus three days of credit under Penal
Code section 2933.1. The trial court went over the plea agreement with defendant, and
specifically asked whether he had read and understood the plea form, whether he had
been advised of the consequences of his plea, and whether he had been advised of the
rights he was giving up by changing his plea. In particular, the court warned defendant
that the current robbery offense was an additional strike, so that a future third strike
conviction could result in a sentence of 25 years to life.
The court also imposed a restitution fine of $240, a stayed parole revocation fine
in the same amount of $240, a court operation assessment of $40 per count, and a
conviction assessment fee of $30 per count. Defendant was advised that he could no
longer possess or own any firearm, deadly weapon, or ammunition, and that he must
provide a DNA sample pursuant to Penal Code section 296. The court ordered defendant
to pay $800 in restitution to the pizza business with respect to the robbery conviction.
The court dismissed the remaining counts and allegations.
Defendant filed a notice of appeal on March 7, 2013, identifying the following
possible issue on appeal: “Plea bargaining process, i.e., I was never considered for
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‘Romero motion’ and/or attorney did not attempt to present this option; nor did the court
during sentencing.”1
ANALYSIS
Defendant’s notice of appeal requested that appellate counsel be appointed for
him. We granted this request. 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 [87 S.Ct.
1396, 18 L.Ed.2d 493], setting forth a brief statement of the case, and identifying one
potential arguable issue: whether defendant’s presentence custody credits were correctly
calculated. Counsel has also requested this court to undertake a review of the entire
record.
Defendant has been offered an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record and find no arguable issues.
We are not privy to the plea negotiations, and so have no basis upon which to
review counsel’s alleged failure to ask the trial court to exercise its discretion to dismiss
defendant’s prior strike. Indeed, defendant agreed as a part of the bargain to admit the
strike, he personally signed the plea agreement, and he said in open court that he
understood the agreed sentence of five years would be based on second strike sentencing
as to counts 1 and 3.
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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Because defendant was charged with and convicted of robbery, a felony
enumerated in Penal Code section 667.5, subdivision (c), the provisions of Penal Code
section 2933.1, subdivision (c), limited him to receiving 15 percent presentence custody
conduct credit. Defendant was properly awarded three days of presentence custody
conduct credit.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
RICHLI J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence, finding no arguable issues after an independent review of the record pursuant to People v. Wende.
Issues
Whether the defendant's presentence custody credits were correctly calculated.
Whether the trial court erred regarding the plea bargaining process and the failure to file a Romero motion.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record and find no arguable issues.”
“Defendant was properly awarded three days of presentence custody conduct credit.”