Filed 8/30/13 P. v. Archuleta CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138205
v.
ANTHONY ARCHULETA,                                                   (Alameda County
                                                                     Super. Ct. No. CH-46290)
         Defendant and Appellant.


         In January 2008, defendant Anthony Archuleta (defendant or Archuleta) was
convicted of a felony assault and related misdemeanor convictions, including battery of a
cohabitant. Imposition of sentence was suspended and he was granted probation.
         Archuleta violated probation in September 2012, when he and his girlfriend beat a
man unconscious in the parking lot of the Oakland Coliseum following a Raiders game.
After Archuleta admitted the probation violation, the court sentenced him to the low term
of two years in state prison on the original offense. As part of a negotiated plea,
defendant agreed to waive all prior custody credits. Although a newly substituted
attorney set a postsentencing hearing to clarify the scope of the credits waiver, and
although she requested that Archuleta be allowed to serve his prison sentence locally, she
made it clear defendant was not requesting to withdraw his admission of the violation.
         Archuleta appealed, and his appellate counsel has filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436. Counsel also declares that she advised Archuleta
that he may personally file a supplemental brief, but he has not done so.




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       We have conducted our independent review of the record and find no arguable
issues and affirm.

                       FACTUAL AND PROCEDURAL HISTORY

       On January 29, 2008, Archuleta was convicted by plea in Stanislaus County of
felony assault (Pen. Code, § 245, subd. (a)(1)),1 misdemeanor battery on a spouse or
cohabitant (§ 273.5), and deterring an executive officer in the performance of duties
(§ 69), also a misdemeanor. Imposition of sentence was suspended and he was granted
probation for three years. In February 2009, his case was transferred to Alameda County
for probation supervision pursuant to section 1203.9.
       On December 21, 2010, defendant’s probation was extended for six months (until
June 21, 2011) to permit him to complete a 52-week domestic violence program. On
April 13, 2011, the court modified his probation by extending it to a period of five years
from the date of his original sentencing, or until January 29, 2013.
       On September 20, 2012, Archuleta was charged with a violation of probation in
that he failed to obey all laws by assaulting a man in the parking lot of the Coliseum
following a Raiders football game. The man allegedly had argued with defendant’s
girlfriend, Monique Menconi, after the game. Menconi called defendant, who came to
her location in the parking lot. Defendant and Menconi then chased the man down, and
defendant sat on him and pummeled him with his fists, while Menconi kicked him in the
head and face.
       On January 24, 2013, defendant admitted the violation and was sentenced to the
lower term of two years in state prison on the original offense. He was sentenced to
180 days concurrently on each of the misdemeanors. When it pronounced judgment the
court clarified, “He was going to waive his credits. That was part of it. [¶] You’re
waiving your credits. Do you understand that you will only be given credits of one day
today toward that sentence?” Defendant personally answered, “Yes.” The judge


       1
           All statutory references are to the Penal Code.


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continued, “Okay. Then he has credits of one day toward that sentence.” No objection to
the credits waiver was raised at the time of sentencing.
       Represented by a new attorney, defendant subsequently requested a hearing for
purposes of “Clarification of whether waiver of credits included credits from 2008 or
were the credits from 2012. Also, to request a paper commitment, due to [defendant’s]
need to keep in contact with his children [and] ill father [and] due to the fact that he
reasonably believed this request would be brought before the court.”
       At that hearing on February 13, 2013, counsel explained, “there are different
pockets of credits that Mr. Archuleta had acquired, 180 days back in 2008 and 149 since
the present confinement on a probation violation. A waiver of credits cannot be accepted
. . . .” Counsel further elaborated that “waiving the credits since the probation violation
in January of 2012 [sic] would be completely acceptable, but a waiver of the prior credits
from back in 2008—”
       The court interrupted, “People routinely do it. It was a negotiated disposition. I’m
looking at the change of plea transcript, it says he agreed.” The court then recited the
colloquy regarding waiver of credits quoted above. It concluded, “If he misunderstood
that and it was represented to him he would get his prior credits that he had earned before
he was incarcerated on the present violation, then that may give him grounds to withdraw
his admission of his violation, but I’m not going to suddenly give him all the credits he
agreed to give up.”
       Counsel then said, “It was unclear to both myself and Mr. Archuleta what that—
whether the waiver did encompass both dockets or not.” The court responded, “I think it
is very clear from the record what the agreement was and what the Court was sentencing
him to. Given that, is he making a request to withdraw his admission of his violation at
this time?” Defense counsel responded in the negative. She said it was “purely a
clarification matter at this point.”
       Defense counsel then raised a second issue, requesting that Archuleta be allowed
to serve his sentence locally because he has three young children and a terminally ill
father who would find it difficult or impossible to visit him at a distant state prison. The


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court expressed the view that it could not “change State Prison time into local time,”
observing “[t]his was a violent offense. I remember this offense. And he was on
probation for a violent offense.” The court considered sympathetically the plight of his
father’s ill health, “but with these allegations and his history, I’m not inclined to grant it.”
       The prosecutor argued “this was a very violent offense. He was on felony
probation for 273.5 and they beat this man unconscious at a Raiders game and then fled.
They were stomping on his head and he was bloodied and they fled. [¶] The agreement
was lowered from midterm to low term, not for Mr. Archuleta’s benefit, but for
Ms. Manconni’s [sic] benefit because of what I talked to her attorney about and just
looking over the facts. I have no desire to change the admission or the plea that was
taken given his violent past.”
       The court then interjected, “I do recall this now. The negotiations that were
occurring here at side bar and I thought this was a little low. He got lower than what he
had been offered previously and now he wants local. I’m going to deny it. I’ll take a
look at the letter [regarding defendant’s father’s illness], but I can’t imagine it’s going to
change my mind that he was already given a deal based on his conduct.”
       The court then asked the district attorney if he would “consider allowing him to
stay local for mid term instead of low term? If it’s that important for him to stay local.”
The prosecutor opposed that suggestion on grounds of defendant’s violent conduct and
his having agreed to the terms imposed as part of a negotiated plea and sentence. “Why
should it be on the county’s tab when it should be on the state’s tab? That’s what he
agreed to and that’s where he should go.”
       After hearing further argument from the defense, the court concluded, “Well, there
were significant negotiations in this case. They were occurring with all of the attorneys
here at side bar, at least the last negotiations because I distinctly recall those. And I
recall, as I said, that he was given a good deal in this case. He’s only going to do a year
actual, and I hope when he gets out that he can still visit with his father and his mother,
obviously. But this isn’t a long sentence in light of what he did. [¶] So the requests are
denied.”


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                                      DISCUSSION
       We have reviewed the entire record as required by People v. Wende, supra,
25 Cal.3d at pp. 441-442. We find no meritorious issues on which to request briefing.
       Defendant was represented by counsel when he admitted the probation violation,
waived custody credits, and was sentenced. He was given appropriate advisements
before admitting the probation violation. As acknowledged in his notice of appeal, due to
his admission of the violation, the only possible issues would be sentencing or other post-
plea irregularities. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) There is no legitimate
argument that a two-year prison term was an unauthorized sentence. (§ 245, subd. (a)(1)
[wobbler: two, three or four years].) The sentences imposed on the misdemeanor counts
were also within the terms prescribed by law. (§§ 69, 273.5.)
       With respect to presentence credits, “a defendant may expressly waive entitlement
to section 2900.5 credits against an ultimate jail or prison sentence for past and future
days in custody.” (People v. Johnson (2002) 28 Cal.4th 1050, 1055.) Here the record
clearly establishes defendant’s waiver of credits, that it was part of a plea agreement, and
that it was intended to result in defendant’s being granted only one day of presentence
credits. No objection to the credits limitation was registered when it was imposed.
       Though we find no ambiguity regarding credits that required clarification, the
court accommodated new counsel’s request for a hearing on that subject. Once the court
indicated its disinclination to grant more custody credits, defense counsel who requested
the hearing expressly declined the court’s invitation to seek to withdraw defendant’s
admission. Defendant’s appellate counsel was also clearly aware of the credits waiver
and its circumstances, and concluded there was no meritorious issue to be raised. We,
too, see no viable issue.
       With respect to defendant’s request to serve his time locally, that, too, was
evidently the subject of negotiation. Defendant apparently was ineligible to serve his




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sentence locally.2 (Pen. Code, §§ 1170, subd. (h)(3), 1192.7, subd. (c)(31).) In any case,
he agreed to serve his time in state prison. We see no legal basis for allowing defendant
to serve his sentence in county jail or to alter the terms of his plea agreement.
                                      DISPOSITION
       The judgment is affirmed.

                                                  _________________________
                                                  Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




       2
         Those convicted of serious or violent felonies are excluded from serving their
sentences in local custody under realignment. (Pen. Code, § 1170, subd. (h)(3).) .) The
abstract of judgment designates defendant’s offense as “Assault with deadly weapon,”
which is enough to render the crime a serious one. (People v. Delgado (2008) 43 Cal.4th
1059, 1065, 1069-1070.)


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