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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                                  2d Crim. No. B269375
                                                                          (Super. Ct. No. 2014007944)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

ALEJANDRO BARILLAS,

     Defendant and Appellant.



                   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.
                                                             1
(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.

                                              2
                                      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.




                                             3
                                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.




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