People v. Estrada CA6

Filed 11/17/15 P. v. Estrada CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042085 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1371792)

v.

JAMES DANIEL ESTRADA,

Defendant and Appellant.

On October 24, 2014, defendant James Daniel Estrada pleaded no contest to one count of assault by means of force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4), count 1.)1 Defendant admitted that he had committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) Before defendant entered his plea and admission, the court indicated that it would sentence defendant to one year in state prison with this term running consecutive to a prison term that defendant was facing in another case—case No. 212370. On January 22, 2015, the court denied probation and imposed the indicated sentence of one year consecutive to defendant’s case No. 212370. The court struck the punishment for the gang enhancement. The court imposed various fines and fees, but did not award defendant any presentence custody credits. Defendant’s counsel filed a notice of appeal on January 27, 2015. Counsel requested a certificate of probable cause based on the court’s denying defendant’s request

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

at the sentencing hearing to withdraw his plea. The court denied the request for a certificate of probable cause. Thereafter, on February 26, 2015, counsel filed an amended notice of appeal “based on the sentence or other matters occurring after the plea that do not affect the validity of the plea.” Defendant’s appointed counsel has filed an opening brief in which no issues are raised. Counsel asks this court to conduct an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that defendant was notified that he could file a supplemental brief with this court. On July 15, 2015, by letter, we notified defendant of his right to submit written argument on his own behalf within 30 days. Ultimately, on October 5, 2015, defendant filed a large letter brief (approximately 42 pages in length). We glean from the letter brief that defendant is complaining that he was not informed on the record that his custody credits would be limited to 15 percent pursuant to section 2933.1.2 Facts and Proceedings Below On December 24, 2013, the Santa Clara County District Attorney charged defendant with one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4), count 1), one count of participating in a criminal street gang (§ 186.22, subd. (a), count 2) and resisting, delaying or obstructing an officer (§ 148, subd. (a)(1), count 3. As to count 1, the complaint contained an allegation that defendant committed the offense for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) Defendant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d. 118), which after hearing the court denied.