People v. Dukes CA2/5

Filed 6/11/15 P. v. Dukes CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B258539

Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. NA095217, v. NA098199)

DARNELL MARICE DUKES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, James D. Otto, Judge. Affirmed. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Defendant, Darnell Marice Dukes, pled no contest in two separate cases to dissuading a witness by force or threat and assault by means of force likely to produce great bodily injury (Pen. Code,1 §§ 136.1, subd. (c)(1) [case No. NA098199], § 245, subd. (a)(4) [case No. NA095217].) Defendant was consecutively sentenced to 11 years in state prison. As part of his plea agreement, defendant waived all presentence credits. Defendant’s probable cause certificate issuance request was denied. We appointed counsel to represent defendant on appeal. After examining the record, appointed appellate counsel filed an “Opening Brief” in which no issues were raised. Instead, appointed appellate counsel requested we independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284.) We have examined the entire record and are satisfied appointed appellate counsel has fully complied with his responsibilities. On April 17, 2015, we advised defendant that he had 30 days within which to personally submit any arguments he wished us to consider. In a letter filed May 5, 2015, defendant objected to the trial court’s post-plea order that his prison sentence be served at 85 percent. At the conclusion of the sentencing hearing, the trial court stated: “The total aggregate term of imprisonment on both cases is 11 years. That is to be served at 85 percent.” The trial court’s order regarding prison worktime credit is not reflected in defendant’s abstracts of judgment. We agree with defendant that the trial court’s oral statement purportedly limiting his post-sentence worktime credit to 15 percent was legally unauthorized. (See People v. Karaman (1992) 4 Cal.4th 335, 349-350, fn. 15 [presentence conduct credit]; People v. Johnson (2015) 234 Cal.App.4th 1432, 1457 & fn. 12 [presentence custody credit]; People v. Gisbert (2012) 205 Cal.App.4th 277, 282 [presentence custody credit].) When a defendant is convicted of a violent felony as defined in section 667.5, subdivision (c), section 2933.1, subdivision (a), limits prison worktime credit to not more than 15 percent. Defendant was convicted of a serious felony. (§ 1192.7, subd. (c)(37) [“[I]ntimidation of