Filed 4/18/13 P. v. Huff CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,                                                          B242412

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA087242)
         v.

RICKEY SPENCER HUFF,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mike

Camacho and Wade D. Olson, Judges.



         California Appellate Project, Jonathan B. Steiner and Dee A. Hayashi, under

appointment by the Court of Appeal, for Defendant and Appellant.



         No appearance for Plaintiff and Respondent.
       Defendant and appellant, Rickey Spencer Huff, appeals from the judgment entered

following his plea of no contest to assault with a deadly weapon (Pen. Code, § 245,

subd. (a)(1))1 and his admission that he previously had been convicted of robbery (§ 211)

within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-

(d)). The trial court sentenced Huff to six years in prison and awarded him a total of 87

days of presentence custody credit. On August 23, 2010 and again on May 30, 2012,

Huff filed petitions in the trial court in which he asserted he was entitled to additional

presentence credits. The trial court denied the petitions. We affirm (§ 1237.1; Cal. Rules

of Court, rule 8.304(b)(4)(B)).

                    FACTUAL AND PROCEDURAL BACKGROUND

       1. Facts.2

       On June 17, 2009, Huff went to the home of his ex-wife and broke into the

residence. When his ex-wife came down the stairs and saw Huff in the living room, she

told him to leave. Huff, however, did not leave and instead forced his ex-wife onto the

couch and attempted to remove her shorts. Although Huff was “extremely violent,” his

ex-wife resisted and was ultimately able to break free of his hold. When she started to

run up the stairs, Huff pulled out a knife and chased her. She, however, with the

assistance of her son, was able to call 911. When she did so, Huff fled. He was later

apprehended at a different location.


1
       All further statutory references are to the Penal Code unless otherwise indicated.
2
       The facts have been taken from the probation report.
                                              2
       2. Procedural history.

       In a felony complaint filed on June 19, 2009, Huff was charged with first degree

burglary with a person present (§ 459) (count 1); assault with the intent to commit rape,

sodomy, oral copulation or another specified offense in the course of a first degree

burglary (§ 220, subd. (b)) (count 2); assault with a deadly weapon (§ 245, subd. (a)(1))

(count 3); disobeying a domestic relations court order (§ 273.6, subd. (d)) (count 4); and

inflicting corporal injury on a spouse, cohabitant or a child’s parent (§ 273.5, subd. (a))

(count 5). It was further alleged as to counts 1 through 5 that Huff previously had been

convicted of two felonies which precluded a grant of probation (§ 1203, subd. (e)(4)), had

been convicted of and served prison terms for four felonies within the meaning of section

667.5, had suffered one prior felony conviction within the meaning of the Three Strikes

law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and, with regard to counts 1 to 3, had

suffered a prior conviction for a serious felony within the meaning of section 667,

subdivision (a)(1).

       At proceedings held on August 4, 2009, the trial court was informed that a

disposition had been reached. Huff was to plead no contest to assault with a deadly

weapon as alleged in count 3 and admit that he previously had been convicted of robbery

pursuant to the Three Strikes law. In exchange, the trial court was to sentence Huff to six

years in state prison.3


3
       The prosecutor informed Huff that the maximum term he “could have received in
this case as charged was life plus 26 years.” Huff was also advised that, in addition to the
sentence imposed, there would be a “restraining order for 10 years.” He was to have no
                                             3
       The prosecutor advised Huff of his right to a preliminary hearing, a court trial and

a jury trial, his right to confront and cross examine the witnesses against him, his right to

subpoena witnesses to testify in his defense and his right to remain silent. After waiving

those rights, Huff pled no contest to the assault alleged in count 3 (§ 245, subd. (a)(1))

and admitted that he previously had been convicted of robbery (§ 211) within the

meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The

trial court accepted the plea and admission and found that they had been freely and

voluntarily made. The court found Huff guilty “based upon [the] plea and admission as

to count 3 and count 3 only, and [found] true . . . one prior conviction under [section]

1170.12[, subdivisions] (a) through (d), as well as [section] 667[, subdivisions] (b)

through (i).”

       After Huff waived arraignment for judgment and sentencing and indicated there

was no legal cause why sentence should not be pronounced, the trial court denied

probation and imposed the mid-term of three years in state prison for his conviction of

assault with a deadly weapon, then doubled the term to six years pursuant to the Three

Strikes law. The court awarded Huff presentence custody credit for 59 days actually

served and 28 days of good time/work time, for a total of 87 days.




“personal, telephonic, electronic or written contact with” the victim in this matter, his ex-
wife. Finally, the prosecutor informed Huff, who was on misdemeanor probation, that
entry of his plea would amount to a violation of that probation. The trial court, however,
indicated that it was not going to add any additional time for the violation. The court
stated, “I’ll just revoke your probation, essentially terminate it without the benefit of
dismissal.”
                                               4
       The court ordered Huff to pay a $200 restitution fine (§ 1202.4, subd. (b)), a

stayed $200 parole revocation restitution fine (§ 1202.45), a $20 court security fee

(§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 70373).

In addition, Huff was to “pay a $400 domestic violence fund fine” and “restitution to the

victim” pursuant to section 1202.4, subdivision (f) in an amount to be determined at a

later date. After imposing the fines, the trial court dismissed the remaining counts and

allegations.

       In a document filed on August 23, 2010, Huff, acting in propria persona, made a

“motion for time credits pursuant to . . . § 4019.” Huff indicated that he had been

convicted on August 4, 2009 and he believed that he had not received all of the

presentence credits to which he was entitled. The trial court considered, then denied the

motion on August 23, 2010. The court indicated that, “[a]fter review of the legal file,” it

had found “that proper credits were given.” 4




4
        In 2009, when Huff was convicted of the crime alleged, subdivision (f) of section
4019 provided that “[i]t [was] the intent of the Legislature that if all days [were] earned
under this section, a term of six days [would] be deemed to have been served for every
four days spent in actual custody.” In 2010, subdivision (f) of section 4019 still provided
that “[i]t [was] the intent of the Legislature that if all days [were] earned under this
section, a term of six days [would] be deemed to have been served for every four days
spent in actual custody.” It was not until 2011 that subdivision (f) of the statute was
amended to read: “It is the intent of the Legislature that if all days are earned under this
section, a term of four days will be deemed to have been served for every two days spent
in actual custody.” In addition, subdivision (h) of the revised statute provided that the
changes would “apply prospectively” to prisoners whose crime was committed “on or
after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, [were to]
be calculated at the rate required by the prior law.”
                                                5
       In a petition filed on May 30, 2012, Huff, again acting in propria persona, again

claimed he was entitled to additional presentence custody credits. He indicated that

pursuant to sections 2900.55 and 4019, 118 days of presentence custody credit should

have been applied against his sentence. On the same day, May 30, 2012, the trial court

denied the petition. The court indicated that the petition was being denied “for the same

reason given on 08/23/2010. The court finds that the proper credits were given.”

       In a document filed on June 28, 2012, Huff, again acting in propria persona,

indicated that he was “formally requesting . . . an appeal on the decision from the hearing

in this courtroom on May 30, 2012, denying [his] petition to grant pre-sentence conduct

and custody credits.”

                                    CONTENTIONS

       After examination of the record, appointed appellate counsel filed an opening brief

which raised no issues and requested this court to conduct an independent review of the

record. By notice filed January 4, 2013, the clerk of this court advised Huff to submit

within 30 days any contentions, grounds of appeal or arguments he wished this court to

consider. No response has been received to date.

                                 REVIEW ON APPEAL

       We have examined the entire record and are satisfied counsel has complied fully

with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People

v. Wende (1979) 25 Cal.3d 436, 443.)

5
       Section 2900.5 essentially provides that a prisoner shall receive credit for any time
spent in custody.
                                             6
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          CROSKEY, J.


We concur:


             KLEIN, P. J.




             KITCHING, J.




                                      7
