Filed 6/26/13 P. v. Haley CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038928
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1113668)

         v.

TODD MICHAEL HALEY,

         Defendant and Appellant.


         On May 24, 2012, Todd Haley (defendant) pleaded no contest to one count of
robbery (Pen. Code, §§ 211-212.5), admitted that he was on felony probation when he
committed the crime (Pen. Code, § 1203. subd. (k)),1 and that he had a prior strike
conviction within the meaning of Penal Code sections 667, subdivisions (b)-(i) and
1170.12. In exchange for his no contest plea, defendant was promised a six year prison
term (top/bottom), the dismissal of a "Prop 8 prior" allegation and one count of giving a
false name to a police officer. (Pen. Code, § 148.9.)
         On September 18, 2012, the court sentenced defendant pursuant to the terms of the
plea bargain. The court awarded appellant custody credits of 403 actual days and 60 days
conduct credit (limited to 15 percent pursuant to Penal Code section 2933.1).

1
        Penal Code section 1203, subdivision (k) provides, "Probation shall not be granted
to, nor shall the execution of, or imposition of sentence be suspended for, any person who
is convicted of a violent felony, as defined in subdivision (c) of Section 667.5, or a
serious felony, as defined in subdivision (c) of Section 1192.7, and who was on probation
for a felony offense at the time of the commission of the new felony offense."
       Subsequently, defendant filed two notices of appeal. In both notices he purports to
appeal his sentence and the denial of a Marsden motion.2
       Defendant's appointed counsel has filed an opening brief in which no issues are
raised and asks this court for an independent review of the record as required by People
v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that defendant was
notified that no issues were being raised by counsel on appeal and that an independent
review under Wende was being requested.
       On February 27, 2013, we notified defendant of his right to submit written
argument on his own behalf within 30 days. We have received two letters from
defendant. In his first letter he details the history of his case. In addition, he appears to
be raising several claims that he received ineffective assistance of counsel related to his
plea bargain, as well as arguing that he did not have a prior strike conviction and was not
on felony probation when he committed the robbery. In his second letter received May 2,
2013, appellant provides us with an "urgent news update." In this letter, he informs this
court that he is facing a "three strikes" case in Monterey County and asks us to
"prioritize" his case. Attached to this letter are the transcripts from two hearings that
occurred in 2008 related to his conviction for robbery in Riverside County, California.
       Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and
have concluded there is no arguable issue on appeal. Pursuant to People v. Kelly (2006)
40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the
case, the crimes of which the defendant was convicted, and the punishment imposed."
(Id. at p. 110.) In addition, we have described defendant's contentions. We will explain
why we reject them. (Id. at p.113.)




2
       People v. Marsden (1970) 2 Cal.3d 118.
                                               2
       Since defendant entered his plea before his preliminary hearing was scheduled to
take place, the facts underlying appellant's conviction are not before us. However, we
glean from the record that defendant robbed a Bank of America of $5,119.75.3
                                     Proceedings Below
       On August 17, 2011, the Santa Clara County District Attorney filed a complaint in
which defendant was charged with one count of robbery (§ 211-212.5)4 and one count of
giving a false name to a police officer (§ 148.9). The complaint contained three
allegations. Specifically, it was alleged that appellant was on probation for a felony
offense when he committed the robbery (§ 1203, subd. (k), that he had a prior serious
felony conviction for robbery (§§ 667, subd. (a) & 1192.7), and that his prior robbery
conviction was a strike within the meaning of sections 667, subdivisions (b)-(i) and
1170.12.
       On November 14, 2011, defense counsel requested that the court appoint a doctor
to examine defendant. Counsel stated that an examination of defendant was necessary in
order for counsel to determine whether to advise defendant to enter a plea based on
insanity or present a defense based upon defendant's mental or emotional condition. The
court ordered defendant to undergo a psychological evaluation and defendant's case was
continued to January 5, 2012.
       On January 5, 2012, defense counsel declared a doubt as to defendant's
competence to stand trial under section 1368; criminal proceedings were suspended.



3
       In his first letter, appellant sets out a statement of his case in which he asserts that
no threat or force was employed when he took the cash and hence "the threat of violence
was kept to a minimum." He admits that he told the bank teller, " 'Give me the money, an
I'm outta here.[']" Defendant states that the teller "politely complied." Defendant says
that he was aware of the bank's policy of "complying when a demand for money ha[s]
been made," therefore, he contends, in essence, that "a threat of violence" was not
required.
4
       All unspecified section references are to the Penal Code.
                                              3
        On February 21, 2012, while defendant's psychological evaluation was still
pending, defendant filed a motion for substitution of counsel pursuant to Marsden, supra,
2 Cal.3d 118. The court heard and denied defendant's Marsden motion on February 29,
2012.
        Thereafter, on April 11, 2012, the matter of defendant's competence to stand trial
was submitted to the court on the reports from defendant's psychological evaluations; the
court found defendant competent to stand trial.
        On May 24, 2012, defendant entered into the negotiated disposition the terms of
which we have outlined ante. The trial judge noted that by agreement there was to be no
Romero motion.5 At the hearing, defendant was advised of his constitutional rights and
the consequences of his plea; defendant waived his rights. Judge Schneider asked
defendant if he had been able to discuss his matter with his attorney including possible
defenses; defendant confirmed that he had. The court asked defendant if he was satisfied
with the discussions; defendant confirmed that he was. Thereafter, defendant entered his
plea of no contest to "count one [a] felonious violation of Penal Code section
211/212.5(c), robbery of cash, taking that from the person of Sarah Turn from her person
or immediate presence and against her will by means of force and fear . . . ." Judge
Schneider went on to ask defendant if he was on probation for robbery from Riverside
County at the time of the robbery. Defense counsel interrupted the court to ask if the
court meant did defendant have a strike prior. The court said no, he was asking the
question with regard to the probation eligibility statute, section 1203. The prosecutor
interceded and said "[t]hat's just probation ineligibility." The court responded, "That
makes him absolutely ineligible for probation." Defense counsel countered, "[w]e
already know that because he has a strike prior." The court insisted, "[b]ut he does
admit -- do you admit that you're ineligible for probation?" Defense counsel responded,


5
        People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
                                             4
"Yes, we admitted it." Defendant responded, "Right." The court went on to ask
defendant if he admitted his prior strike conviction—"the same robbery from the
Riverside Docket SWFO26264. This has the effect of making you absolutely ineligible
for probation and doubling the term. Do you admit that prior strike conviction?"
Defendant responded "Yes."
       Before sentencing, on August 30, 2012, defendant filed a second Marsden motion.
After a hearing on September 18, 2012, during which the court meticulously went
through each point defendant had raised in his motion, the court denied the motion and
sentenced defendant pursuant to the terms of the plea bargain. The court dismissed the
false name count and the prior serious felony allegation.
                                 Defendant's Contentions
       Although defendant's writings are difficult to understand, we glean that he was not
happy with his representation by the public defenders' office and felt that he was
pressured into taking a plea deal in this case. During his two different Marsden motions
defendant complained that his attorneys refused to meet with him, file motions on his
behalf or supply him with copies of various transcripts. Both Judge Allegro and Judge
Navarro listened to defendant's complaints and defense counsel's explanations for what
had in fact happened; both denied defendant's request for substitute counsel. Judge
Allegro noted that although she appreciated defendant's frustration having different
attorneys represent him at different stages of the proceedings, all of whom were
encouraging him to take a plea bargain that had been offered, she found nothing
unprofessional about their representation.6 Similarly, Judge Navarro found that
defendant had presented insufficient evidence that his right to counsel had been
substantially impaired. Having reviewed the transcripts of the Marsden hearings we find
no error.

6
      At one point during this first Marsden hearing, defense counsel pointed out that as
charged defendant was facing 15 years in state prison.
                                             5
       As to defendant's contention that he does not have a prior strike conviction,
defendant admitted that he did.7 Any robbery constitutes a strike. (§ 667, subds. (b)-(i)
& 1170.12, 667.5, subd. (c), 1192.7, subd. (c)(19).) For purposes of the three strikes law
a prior conviction for a felony shall be defined as any offense defined in subdivision (c)
of section 667.5 as a violent felony or any offense defined in subdivision (c) of section
1192.7 as a serious felony. (§ 667, former subd. (d)(1).) "Any Robbery" is designated as
a violent felony in section 667.5 subdivision (c)(9) and "robbery or bank robbery" is
designated a serious felony in section 1192.7 subdivision (a)(19).
       As to defendant's contention that he was not on probation when he committed the
robbery underlying the conviction in this case, again defendant admitted that he was.
       By pleading guilty or no contest, a defendant admits every element of the offense
and sentence enhancements. (People v. Thomas (1986) 41 Cal.3d 837, 842-844, fn. 6
(Thomas); People v. Lobaugh (1987) 188 Cal.App.3d 780, 785 [enhancement admissions
are subject to the same principles as guilty pleas and an admission waives any right to
raise questions about the evidence, including its sufficiency]; section 1016 [no contest
plea has the same effect as a guilty plea].) When a defendant enters into a plea bargain,
he is bound to the terms of the bargain. (Thomas, supra, 41 Cal.3d at p. 840.)
       Further, "section 1237.5 provides that a defendant may not take an appeal from a
judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed
in the superior court a statement of certificate grounds, which go to the legality of the
proceedings, including the validity of his plea, and has obtained from the superior court a
certificate of probable cause for the appeal. [Citation.]" (People v. Mendez (1999) 19
Cal.4th 1084, 1095.)



7
       In fact, the transcripts from the Riverside County case with which defendant has
supplied this court confirm that he pleaded guilty to robbery in 2008; and that he was
placed on three years formal probation on November 7, 2008.
                                              6
       Since defendant did not did obtain a certificate of probable cause under section
1237.5, defendant cannot challenge the validity of his admission to the "strike" prior on
appeal. We see no logical reason that the same rule should not apply to his admission
that he was on felony probation when he committed the robbery in this case.
                                        Conclusion
       Upon our independent review of the record including the transcripts from the two
Marsden hearings that defendant requested, we conclude there are no meritorious issues
to be argued, or that require further briefing on appeal. Defendant's custody credits were
correctly calculated pursuant to sections 4019 and 2933.1.8 At all times appellant was
represented by competent counsel.




8
        A criminal defendant is entitled to accrue both actual presentence custody credits
under Penal Code section 2900.5 and conduct credits under Penal Code section 4019 for
the period of incarceration prior to sentencing. At the time defendant committed his
crime on August 13, 2011, for a brief period of time section 2933, subdivision (e)(1)
provided that a prisoner sentenced to state prison "shall have one day deducted from his
or her period of confinement for every day he or she served in a county jail, city jail,
industrial farm, or road camp from the date of arrest until state prison credits" were
applicable if the defendant had satisfactorily performed labor and complied with all
reasonable rules and regulations. However, section 4019 and not this section applied
because defendant has a prior conviction for a serious felony. (§ 2933, former subds.
(e)(1),(3), Stats. 2010, ch. 426 § 1, eff. Sept 28, 2010.) In turn, when defendant
committed his crime section 4019 provided for conduct credits to accrue at the rate of
two days for every four days of actual time served in presentence custody. (Stats. 2010,
ch. 426, § 2.) Nevertheless, defendant's custody credits under section 4019 were limited
to 15 percent of the actual period of confinement because he was convicted of a felony—
robbery, which is an offense listed in subdivision (c) of section 667.5. (§ 2933.1 [any
person who is convicted of a felony offense listed in subdivision (c) of section 667.5 shall
accrue no more than 15 percent of worktime credit].)
                                             7
                                 Disposition
     The judgment is affirmed.




                                   ________________________________
                                   ELIA, J.


WE CONCUR:




______________________________
RUSHING, P. J.




______________________________
PREMO, J.




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