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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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

 Plaintiff and Respondent,

v.

ALEJANDRO BARILLAS,

 Defendant and Appellant.

2d Crim. No. B269375

(Super. Ct. No. 2014007944)

(Ventura County)

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.
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(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.
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DISCUSSION

A defendant who has been sentenced and is serving time is not entitled to 

presentence custody credit while awaiting trial and sentence on another charge. (In re 

Rojas (1979) 23 Cal.3d 152, 155-156.) The reason for the rule is that the defendant's 

custody is not attributed to the pending charges, but to the prior sentence. (Ibid.) Our 

Supreme Court has not determined an exception to this rule where the inmate services 

provided during the pending-trial custody are negligible. We are bound by In re Rojas. 

(Ibid.; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.))

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

TANGEMAN, J.
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Ryan J. Wright, Judge

Superior Court County of Ventura

______________________________

Mark R. Fesser, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.