Filed 6/25/15 P. v. Reyna 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. GABRIEL REYNA, Defendant and Appellant. F068551 (Kings Super. Ct. No. 12CM7587)



### OPINION

THE COURT * APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter, Judge. Gabriel C. Vivas, under appointment by the Court of Appeal , for Defendant and Appellant. Office of the Attorney General, Sacr amento, California, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J. and Franson, J.2. INTRODUCTION Appellant/defendant Gabriel Reyna, a st ate prison inmate, pleaded no contest to assault with force likely to produce great bodily injury on another inmate and was sentenced to four years pursu ant to a negotiated disposition. On appeal, his appellate counsel filed a brief that su mmarizes the facts w ith citations to the record, raises no issues, and asks this court to in dependently review the record. ( People v. Wende (1979) 25 Cal.3d 436 ( Wende ).) By letter on April 10, 2014, we invited defe ndant to submit additional briefing. Defendant has filed a letter brief and cl aims that, as part of the negotiated disposition, he was supposed to receive “h alf time” conduct credits while serving the four-year term; he entered into the plea base d on that promise; the court refused to order enforcement of that promise; and he is entitle d to specific performance of the terms of the plea. As we will explain, the superior c ourt repeatedly advised defendant he was not entitled to earn half-time credits, and it could not make such an order as an element of the plea. The court offered him th e opportunity to withdraw his plea, and he decided not to do so. We affirm. FACTUAL AND PROC EDURAL HISTORY On August 15, 2012, defenda nt was an inmate serving a prison term at Corcoran State Prison. He assaulted Michael Alderett e, another inmate, by “kneeing” him in the stomach with force likely to produce great bodily injury. 1 On October 22, 2012, a comp laint was filed in the Superi or Court of Kings County charging defendant with assault with a deadly weapon on anot her inmate, a sharp instrument (Pen. Code, § 4501), 2 with a great bodily injury enhancement (§ 12022.7), one prior strike conviction, and tw o prior prison term enhancements.

1 The facts are from the prosec utor’s statement of the f actual basis for defendant’s plea. 2 All further statutory citations are to th e Penal Code unless otherwise indicated.3. Defendant’s plea On September 30, 2013, th e court convened a hearing and defense counsel stated that a negotiated disposition ha d been reached. Defense co unsel said the prosecutor would amend count I to allege defendant co mmitted an assault upon another inmate with force likely to commit great bodily injury and would dismiss the sharp instrument allegation, the great bodily in jury enhancement, and the prior conviction allegations. Defendant would receive the stipulated midterm of four years. The prosecutor concurred about the terms. Defense counsel advised the court that defendant had prepared a letter about “whether or not he receives any custody credits.” Counsel stated: “Currently in CDC[R] [defendant] is not receiving custody credits due to his validation status as a ga ng member. And that, as I’ve advised him, is a writ procedure to be dealt with through CDC[R], that this Court has no power to order any particular sentence credit scheme. And that is why we are now resolving the matter w ith what could potentially be half time credits, depending upon what CDC[R] does and his housing status and his conduct.” The court confirmed that defendant was currently serving a prison sentence and advised defendant the four-year term he was ab out to receive as a result of his plea would be fully consecutive to the te rm he was already serving. Defendant replied, “Okay.” The court addressed defendant’s possible time credits:
“THE COURT: You would not be entitled to any time credits because ... you’re already serving time on another case. Now you seem to have some disputes about that other ca se; that is not before the Court, the Court has no jurisdiction to addr ess that; do you understand that? “THE DEFENDANT: No, I understand that. The only thing, what I’m saying regarding this case right here is is it going to be the 80 or – “[DEFENSE COUNSEL]: It will be half-time eligibility. However, as—4. “THE COURT: It’s fully consecu tive so you’re going to finish your sentence— “THE DEFENDANT: Yes. “THE COURT: --in your current case. Then you’ll start serving this case. “THE DEFENDANT: But I’m elig ible to get the half-time off this case, correct? “THE COURT: Once you begi n serving time in this case.
“THE DEFENDANT: Yes.
“THE COURT: Yes. “[DEFENSE COUNSEL]: And I thi nk this issue was the CDCR has classified [defendant] deni es him any custody credits. “THE COURT: And that would be—that’s up to CDC[R]. You’re entitled to—you may be entitled to receive that. But depending upon your status in the prison, they are the ones that—that you may not get the 50 percent credit, depending u pon your status in the prison

. “THE DEFENDANT: Okay, my concern is all this is going to be indicated on record, right, that I’m eligible for the half-time on this case

. “THE COURT: Right. I’m not promising that you’ll get that

. “THE DEFENDANT: Yes.
“THE COURT: Do you understand that there’s no promise that you’ll get the 50 percent. You’re eligible for it

. “THE DEFENDANT: Because of the [section] 2933.6. “THE COURT: Right. “[DEFENSE COUNSEL]: Correct. And I’ve—what I’ve explained to [defendant] is any irregularities with his sentence credit once he starts serving this term has to be dealt with through a writ procedure and it really has nothing to do with this Court at this time. “THE COURT: Right. Do you understand that ...?5. “THE DEFENDANT: I understand that. “THE COURT: Any other questions? “THE DEFENDANT: No, your Honor.” (Italics added.) The court advised de fendant of his constitutional ri ghts and the consequences of his plea. Defendant said he understood and waived his rights, including waiver of the right to an appeal. The court asked defendan t if he had any questi ons, and defendant said

no. Thereafter, defendant pleaded no contest to a violation of section 4501, assault with force likely to produce great bodily injury while co nfined in a state prison on another inmate. The court dismissed the e nhancement and prior conviction allegations. Sentencing At the same hearing, defendant waived a probation report, and the court turned to the sentencing. Defense counsel again ad vised the court about defendant’s letter regarding half-time credits, “which we’ve alre ady discussed at the beginning before the plea.” Counsel said defendant wanted the co urt to know about his concerns, which he had already stated. The court asked defendant if there was anything else he wanted to say, and defendant again raised the credit issue. “[THE DEFENDANT]: Well, my thing was that I wanted to get sentenced to the—well, to the 50 percent , because CDCR won’t give me the half-time.
“THE COURT: Okay, you have to understand that time credits are not negotiated . It is what it is. If you’re entitled to it you receive it. This crime that you have pled to, you’re en titled to receive 50 percent. You’re eligible for that. I guess entitlement is not correct, it is you’re eligible to receive 50 percent.
“THE DEFENDANT: But, see, it’s part of the plea bargain — “THE COURT: No, okay, then there’s no plea bargain. And I will allow you to withdraw your plea. It’s not an entitlement, it’s you’re6. eligible. Okay? So that—you need to understand the difference between an entitlement and eligibility. And if it’ s—you are not entitled to it, you are eligible for it, and if you think that y ou are entitled to it, then I’ll allow you to withdraw your plea and you can go to trial. So does that—do you understand what the Court is saying ?
“THE DEFENDANT: Yes, I do

. “THE COURT: And I apologize, I used the wrong term by saying entitlement, it is not an entitle ment it is an eligibility. Okay, what that means is that you could get 50 percent, but if by the rules of the state, of the prison, and they restrict that, and there’ s a regulation that says they can do that, then they will do that .” (Italics added.) Defense counsel explained that defendant wa nted the court to calculate his credits and “sentence him to the actual time he would be serving.” Counsel said he explained to defendant that was not within the court’s discretion, and the court agreed that it would not do that. “THE COURT: Do you understand th at? And I think we went over this. You are not going to get any time credits in this case. So far. You have to finish the sentence that you’re currently serving. Then you can start serving—you will be serving this four year term and you’re eligible to receive 50 percent. “THE DEFENDANT: No, I understand that. “THE COURT: Okay, with that un derstanding, did you want to go forward with the sentencing and have the plea stand? “THE DEFENDANT: Yes, th at’s fine, your Honor.” The court denied probation and sentenced defendant to the midterm of four years, to run fully consecutive to the sentence he was already serving. The court stated defendant was not entitled to receive any time credits “in th is case because he’s already serving time in another case.” Defense counsel asked the court to clarify that defendant was not eligible “for credits served alrea dy” because he was curre ntly serving another term. The court said yes, and defendant said he understood.7. On November 20, 2013, defendant filed a notice of appeal and requested a certificate of probable cause ba sed on the claim that part of the plea was for half-time credits; he was forced to take the plea w ithout that condition; and he was entitled to specific performance of the plea agreemen t. The court denied his request. DISCUSSION As noted above, defendant’s counsel has filed a Wende brief with this court. In response to this court’s notice, defendant subm itted a letter brief and asserts the terms of his plea bargain were violated. Defendant contends he pleaded to a sp ecific charge and sentence, and he was promised “specific benefits,” which included that he would earn half-time credits on a four-year term. He decided to accept the plea bargain based on this promise, but the court and CDCR modified the agreement without his consent to elim inate the promise for half-time credits. Defendant asserts he notified the court th at CDCR would not give him half-time credits because of his gang classification; th e court could have addr essed this problem at the hearing; the court declined to exercise its discretion to do so; and it failed to reject the plea agreement. Defendant complains he “had to take the plea” with the “unfavorable circumstance” of not receiving half-time credits or face a possible longer sentence after a trial. Defendant states that cont rary to the court’s statem ents about eligibility and entitlement, he was “entitled” and had an “absol ute right” to receive half-time credits as an element of his plea bargain. Defendant asserts this court must enforce the plea agreement and issue an order for specific performance of all the terms. In the alternative, defendant suggests the matter be remanded for the court to resentence him to two years “without credit, flat time” which would ensure that his sentence would be in accordance with the plea agreement and meet his classification requirements.8. We note defendant waived his appellate ri ghts as part of his plea, and he failed to obtain a certificate of probable cause. ( People v. Mashburn (2013) 222 Cal.App.4th 937, 943-944.) In any event, his claims are co mpletely refuted by th e record. Defendant essentially asserts that the pl ea agreement was that he wo uld earn half-time credits on a four-year stipulated term, so that he would only serve two years. As we have explained above, this premise is clearly refuted by the record of the plea and sentencing hearing. The court repeatedly advised defendant that he was “eligible” to earn 50 percent credits as a result of his plea, but he was not entitle d to these credits, and the court could not order a particular credit formula as part of the plea. Defense counsel explained that he had also advised defendant of this situ ation given his gang-c lassification status. After giving these lengthy explanations about the credit issu e, the court gave defendant the opportunity on two occasions to withdraw his plea. Defendant said he understood the court’s explanat ions about the credits, and he declined to withdraw his plea. A defendant’s guilty plea and waiver of constitutional rights must be knowing, intelligent, and voluntary—“made with a full awareness of th e nature of the right being waived and the consequences of the waiver....” ( People v. Smith (2003) 110 Cal.App.4th 492, 500.) Defendant was well aware of th e distinction between his “eligibility” and “entitlement” to half-time credits; he declined the court’s offer to withdraw the plea; and he decided to accept the four-y ear stipulated term withou t any guarantees about the amount of conduct credits he would earn. “A plea may not be withdrawn simply because the defendant has changed his mind. [Citation.]” ( People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) “Postplea apprehension (buye r’s remorse) regarding the anticipated sentence, even if it occurs well before sentencing, is not suffi cient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty. [Citation.]” ( People v. Knight (1987) 194 Cal.App.3d 337, 344.)9. After further independent review of the record, we find that no reasonably arguable factual or legal issues exist. DISPOSITION The judgment is affirmed.