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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES DANIEL ESTRADA,

Defendant and Appellant.

 H042085

 (Santa Clara County

 Super. Ct. No. C1371792)

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.
2

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.

 

2

In the majority of his letter brief defendant complains about things that happened 

in the incident underlying this case. There are no details in the record concerning the 

facts of the underlying case. This is because there was no preliminary hearing and 

counsel waived referral to probation. Accordingly, we have no record against which to 

judge defendant’s claims.
3

Subsequently, as noted, defendant pleaded no contest to count 1 and admitted the 

gang enhancement. The prosecutor indicated that he would be willing to dismiss 

counts 2 and 3 at the time of sentencing.

Defendant executed an “Advisement of Rights, Waiver, and Plea Form” in which 

defendant acknowledged that he was pleading to a strike. The court explained to 

defendant that count 1 with a gang enhancement was a strike. Defendant asked the court 

if he would “be leaving with two strikes”—one in his “original case” and then one in this 

case. The court confirmed that he would have one strike for this case, but could not 

comment on his other case as the other case was not before the court. Defendant 

responded, “All right. Thank you.” Before defendant entered his plea, the court 

confirmed with defendant that he had read and understood the waiver form, that he had 

initialed and signed the form, and that he understood all the rights as described in the 

form. Defendant waived his rights. Further, defendant confirmed that he understood the 

consequences of his plea. The court asked defendant if he had any additional questions. 

Defendant confirmed that he did not. Thereafter, defendant entered his no contest plea.

Before sentencing, defendant moved to withdraw his plea on the ground that he 

did not understand that by admitting the gang enhancement attached to count 1 he would 

have a strike conviction. At the hearing on defendant’s motion, the court found that 

defendant’s assertion that he did not understand that admitting the gang enhancement in 

the case would mean that he was admitting a strike lacked “credibility.” Accordingly, the 

court denied defendant’s motion. The court went on to sentence defendant as outlined 

ante.

Upon our independent review of the record, including the transcript of a Marsden

hearing, we conclude there are no meritorious issues to be argued, or that require further 

briefing on appeal. The fines and fees imposed are supported by the law and the facts. 

Defendant received a legally authorized sentence. The denial of custody credits on 

defendant’s consecutive sentence was correct. (§ 2900.5, subdivision (b), [credit shall be 
4

given only once for a single period of custody attributable to multiple offenses for which 

a consecutive sentence is imposed].) Defendant was in custody on at least two different 

cases and the court imposed a consecutive sentence in this case.

Finally, as to defendant’s contention that he was not informed on the record that 

his custody credits would be limited to 15 percent pursuant to section 2933.1, we note

that we have reviewed the record to determine whether defendant’s plea was 

constitutionally invalid due to the court’s failure to advise him that his presentence 

conduct credits would be limited to 15 percent of his time in local custody. The statutory 

limitation on the amount of presentence custody credits a defendant may earn has been 

deemed a collateral consequence of a guilty plea, not affected by the court’s or counsel’s 

failure to admonish the defendant. (People v. Moore (1998) 69 Cal.App.4th 626, 630;

see also People v. Reed (1998) 62 Cal.App. 4th 593, 597-601.) Therefore, the court’s 

failure to advise defendant that his presentence custody credits would be limited by the 

provisions of section 2933.1 does not affect the voluntariness of defendant’s plea.

Disposition

The judgment is affirmed.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

The People v. Estrada

H042085