People v. Briseno CA5

Filed 4/22/22 P. v. Briseno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F083156 Plaintiff and Respondent, (Super. Ct. No. F21902538) v.

JOEY BRISENO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Francine Zepeda, Judge. Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Smith, J. and DeSantos, J.

Appointed counsel for defendant Joey Briseno asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, contending (1) he signed a plea agreement that he did not agree with because defense counsel misinformed him that he would serve half of his time under the plea agreement, but then the trial court informed him he would serve 85 percent of his time, and (2) he did not commit robbery because he had paid for the item he took. Finding no arguable errors that would result in a disposition more favorable to defendant, we affirm. BACKGROUND1 On June 14, 2021, defendant pled no contest to robbery (Pen. Code, § 211)2 in exchange for a sentencing lid of three years to run concurrently with the sentence in another case, dismissal of his other counts and his prior strike conviction. The trial court informed defendant he was pleading to a strike offense, but custody credits were never discussed on the record during the plea hearing. On July 26, 2021, at the sentencing hearing, the trial court stated it intended to follow its indicated sentence of two years. In response, defense counsel stated she had a question about credits, then said: “I understand that he is limited to 15 percent. However, because the strike prior was dismissed, I think he is entitled to the 50 percent time credits. So he should, instead of 18 good time work time, he should have at least 123 good time work time.” But the court, probation officer, and prosecutor all agreed that because defendant’s current offense was a strike, his credits were limited. Defendant told the court defense counsel had told him he would receive 50 percent credits. The following then occurred: