People v. Barillas CA2/6

Filed 5/16/16 P. v. Barillas CA2/6 Received for posting 5/18/16 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B269375 (Super. Ct. No. 2014007944) Plaintiff and Respondent, (Ventura County)

v.

ALEJANDRO BARILLAS,

Defendant and Appellant.

Alejandro Barillas appeals a judgment entered following his nolo contendere plea to conspiracy to commit assault with force likely to produce great bodily injury, with admissions that he committed the offense to benefit a criminal street gang, and that he suffered a prior serious felony strike conviction. (Pen. Code, §§ 182, subd. (a), 245, subd. (a)(4), 186.22, subd. (b)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)1 We appointed counsel to represent Barillas in this appeal. After examination of the record, counsel filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) On April 6, 2016, we advised Barillas that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. On April 22, 2016, we received a response from him contending that the trial court erred by denying any presentence custody credits. Pursuant to People v. Kelly

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

(2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case and a brief discussion of Barillas's contention. FACTS AND PROCEDURAL HISTORY On October 6, 2010, Barillas was convicted of attempted murder, and assault with a deadly weapon, with a finding that he committed the offenses to benefit a criminal street gang. The juvenile court committed Barillas to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice. On April 2, 2015, the Ventura County prosecutor charged Barillas by felony information with conspiracy to commit assault by means likely to produce great bodily injury (count 1) and street terrorism (count 2), with allegations that he committed the crimes to benefit a criminal street gang and suffered two prior serious felony strike convictions. (§§ 182, subd. (a), 245, subd. (a)(4), 186.22, subd. (b)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The charges rested upon a March 10, 2014, assault by Barillas and seven other wards on two counselors at the juvenile justice facility. Barillas and the other wards were members of the Sureno criminal street gang. The two counselors required medical treatment; one counselor suffered a concussion, nasal and rib fractures, fractured teeth, bruises, and a knee injury. As part of a plea agreement, Barillas waived his constitutional rights, and entered a nolo contendere plea to conspiracy (count 1). He also admitted the criminal street gang allegation and one serious felony strike allegation. On October 27, 2015, the trial court sentenced Barillas to a prison term of nine years, including a three-year midterm for the conspiracy count (then doubled) and a consecutive three-year term for the criminal street gang enhancement. The court imposed a $300 restitution fine, a $300 parole revocation restitution fine (suspended), a $40 court security assessment, and a $30 criminal conviction assessment. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) The court did not award Barillas any presentence custody credit. It then dismissed the remaining criminal count and allegations, including a second serious felony strike conviction.