People v. Askew CA2/2

Filed 9/28/15 P. v. Askew 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B257800

Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. MA039230, v. MA057456)

JONATHAN L. ASKEW,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles A. Chung, Judge. Remanded.

Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found defendant Jonathan Lamar Askew guilty of grand theft (Pen. Code, § 487, subd. (c))1 as a lesser included offense of second degree robbery in case No. MA057456. After granting defendant’s Romero motion,2 the trial court sentenced him to eight months in state prison (one-third the midterm) to run consecutively to a 21-year sentence imposed in an earlier case, case No. MA039230, in which defendant had entered a “no contest” plea and been granted probation. Defendant appeals on the grounds that the trial court breached his plea agreement in case No. MA039230 when it denied his request to award him the presentence custody credits that induced him to take the plea. FACTUAL AND PROCEDURAL BACKGROUND3 On August 21, 2007, an information was filed against defendant, charging him with two counts of assault with a deadly weapon (a knife) in violation of section 245, subdivision (a)(1). The information alleged with respect to both counts that defendant had caused great bodily injury within the meaning of section 12022.7, subdivision (a) and that he committed the offenses for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). The information also stated that both crimes were serious felonies under section 1192.7, subdivision (c). On May 23, 2008, with respect to both counts, defendant withdrew his not guilty pleas, pleaded nolo contendere, and admitted the great bodily injury and gang allegations. Defendant was advised that he was entitled to presentence credits of 15 percent under section 2933.1. Execution of defendant’s 21-year sentence was suspended, and he was placed on formal probation for a period of five years. The prosecutor made clear that, although defendant was being asked to “waive his back time” so that he could be sentenced to an additional year in county jail as a condition of probation, the state was