People v. Temple CA3

California Court of Appeal Apr 1, 2015 No. C076517Unpublished

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Holding. The court held that the defendant did not knowingly and intelligently waive his right to appeal or his right to receive conduct credits accrued in a dismissed case, as the record lacked evidence of a valid waiver. Consequently, the court modified the judgment to award the defendant the disputed 174 days of conduct credit.

Issues

Whether the defendant knowingly and intelligently waived his right to appeal the custody credit determination.
Whether the defendant knowingly and intelligently waived his entitlement to conduct credits accrued in a dismissed case.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“As the People necessarily concede, there is nothing in the record to suggest that defendant expressly waived his right to appeal, either orally or in writing.”

“Defense counsel’s assertion that “there won’t be any argument or appeal on the issue” does not amount to a knowing and intelligent waiver on the part of defendant.”

“On this record, we find that defendant did not knowingly and intelligently waive his right, to which all parties had previously agreed, to have all of the presentence credit from the dismissed case applied to his sentence in the instant case.”

Filed 4/1/15 P. v. Temple CA3

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE, C076517

Plaintiff and Respondent, (Super. Ct. Nos. 62106176, 62098759) v.

CHRISTOPHER JOHNNY TEMPLE,

Defendant and Appellant.

Defendant Christopher Johnny Temple pleaded no contest to solicitation of murder (Pen. Code, § 653f, subd. (b))1 pursuant to People v. West (1970) 3 Cal.3d 595 and admitted a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) in exchange for a stipulated term of 12 years and dismissal of pending charges in another case.

1 Further undesignated statutory references are to the Penal Code.

On appeal, defendant contends the trial court erred in failing to award him 174 days of conduct credit accrued in the dismissed case. The People respond that defendant waived his right to the credit--and his appellate rights--pursuant to a stipulation entered after sentencing. We disagree and modify the judgment to award defendant the disputed 174 days. FACTUAL AND PROCEDURAL BACKGROUND We dispense with a recitation of the facts surrounding defendant’s crimes as they are not relevant to the issue raised on appeal. On August 18, 2010, defendant was charged in case No. 62-098759 (the kidnapping case) with kidnapping during a carjacking (§ 209.5, subd. (a); count one) and carjacking (§ 215, subd. (a); count two). It was further alleged that defendant had sustained one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (§ 667.5, subd. (b)). On May 5, 2011, defendant was charged in case No. 62-106176 (the murder case) with solicitation of murder (§ 653f, subd. (b)), as well as the strike and three prior prison terms. After defendant resolved his cases by plea agreement and then successfully moved to withdraw from his pleas, on March 7, 2014, he again entered a written plea agreement resolving both of his pending cases. He pleaded no contest to solicitation of murder and admitted the prior strike allegation in exchange for a stipulated term of 12 years in state prison and dismissal of the kidnapping case. At the end of the change of plea hearing, the trial court (Pineschi, J.) stated, “So I’ll accept the plea as given and the admission, and I’ll refer this gentleman to [the] Probation Department for a credits memo update. And that’s the only reason we’re going to have Probation become involved, to establish [an] update on his credits.” The probation department submitted a credit memo shortly thereafter. According to the credit memo, defendant had 1088 actual days served and 544 “case law credit,” for a total of 1,632 days in the murder case. The credit memo also indicated that defendant

People v. Temple CA3

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THE PEOPLE, C076517

CHRISTOPHER JOHNNY TEMPLE,

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