People v. O'Brien CA2/6

Filed 4/20/15 P. v. O’Brien CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B256060 (Super. Ct. No. F466160) Plaintiff and Respondent, (San Luis Obispo County)

v.

LATOMIESHA O'BRIEN,

Defendant and Appellant.

Latomiesha O'Brien appeals an April 14, 2014 order denying his petition for writ of error coram nobis to vacate a 2012 conviction for possession of an illegal 1 substance in a jail/prison facility (Pen. Code, § 4573.6). The trial court ruled that the petition failed to state grounds for relief. We affirm. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) In 2011 appellant had several bindles of marijuana in his prison cell and was charged with possession of an illegal substance in a jail/prison facility (§ 4573.6) and possession of marijuana for sale (Health & Saf. Code, § 11359). After the trial court declared a doubt as to appellant's mental competency, three mental health experts evaluated appellant. (§§ 1368; 1369, subd. (a).) On January 25, 2012, the trial

1 All statutory references are to the Penal Code unless otherwise stated.

court found appellant mentally competent to stand trial and reinstated criminal proceedings. On March 7, 2012, appellant entered a plea of no contest to possession of an illegal substance in a jail/prison facility and admitted three prior strike convictions. (§§ 667, subds. (d)-(e); 1170.12, subds. (b)-(c).) After the prosecution dismissed count 2 (possession of marijuana for sale), the trial court struck two of the prior strikes. (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) During the hearing, appellant asked about halftime credits and was told that "it's not part of the plea 2 agreement" and the indicated sentence was eight years. On April, 23, 2012, the trial court denied probation, sentenced appellant to eight years state prison (four-year upper term, doubled based on the prior strike), and ordered the sentence to run consecutive to the nine-year sentence appellant was currently serving for a home invasion robbery with a firearm. After sentence was imposed, appellant asked: "Excuse me, your Honor, that eight years, was that half or 85 percent?" "THE COURT: Mr. O'Brien -- [¶] Let's go back on the record (sic) in the matter of Mr. O'Brien. [¶] "Mr. O'Brien, because you're not entitled to presentence custody credits, I'm not giving you any -- you don't have any actual or good time/work time credits as of today. The sentence is [to] run consecutive to the time that you've already received. . . . ”THE DEFENDANT: What percentage do I get? Like, is it halftime or eight and a half (sic)?