Filed 9/25/13 P. v. Mourning CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


THE PEOPLE,                                                         D063241

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD241345)

JEFFEREY MOURNING,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Dwayne

K. Moring, Judge. Affirmed.

         Lewis A. Wenzell, under appointment of the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         In July 2012 Jefferey Mourning pled guilty to commercial burglary. He was

sentenced to the low term of 16 months to be served in the custody of the sheriff pursuant

to Penal Code1 section 1170, subdivision (h).



1        All further statutory references are to the Penal Code.
       Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not

arguable, issues. We offered Mourning the opportunity to file his own brief on appeal,

but he has not responded.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In June 2012 Mourning was charged with one count of commercial burglary. In

July 2012 Mourning pled guilty to the charge under a bargain limiting his sentence to no

more than two years in local custody. Mourning was thereafter sentenced to the low term

of 16 months to be served in the custody of the sheriff. Mourning was ordered to serve

four months in local custody and the remaining 12 months under mandatory supervision

of the probation department pursuant to section 1170, subdivision (h)(5)(B).

       On November 20, 2012, Mourning's mandatory supervision was revoked after he

admitted a nonreporting violation. He was ordered to serve out the remainder of his

sentence which consisted of 280 days. With respect to the 280 days left to serve,

Mourning was entitled, under section 4019, subdivision (f), to day-for-day credit, leaving

140 actual days to serve.

       On December 12, 2012, Mourning filed a notice of appeal. On December 14,

2012, he filed an amended notice of appeal in propria persona, which also requested that

the superior court issue a certificate of probable cause. In the request for certificate of

probable cause Mourning argued that his counsel ineffectively represented him at the

revocation hearing. He argued his nonreporting was excused because of his memory

problems caused by shock treatments he received and strong medications he was taking

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for his seizures. On January 2, 2013, the superior court denied the request for certificate

of probable cause.

       Appellate counsel discovered that the sheriff had calculated his release date to be

May 27, 2013, based upon application of one day of credit for each two days served,

which was the credit amount under prior law. Counsel communicated with the trial court

concerning this issue and the court issued an amended sentencing order. Mourning's

release date was recalculated as April 9, 2013.

       On April 9, 2013, Mourning was released from custody without conditions as his

sentence, under section 1170, subdivision (h), was deemed to have been fully served.

                                       DISCUSSION

       As we have previously noted, appellate counsel has filed a brief indicating he is

unable to identify any argument for reversal and asks this court to review the record for

error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.

738, the brief identifies the following possible, but not arguable issues:

       1. Whether a claim of ineffective assistance of counsel at a probation violation

hearing is cognizable on appeal when a defendant admits the violation of probation, and

       2. Whether Mourning's appeal is moot.

       We have reviewed the entire record in accordance with Wende, supra, 25

Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issues raised by




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appellate counsel, and have not found any reasonably arguable appellate issues.

Competent counsel has represented Mourning on appeal.

                                     DISPOSITION

      The judgment is affirmed.


                                                                              NARES, J.

WE CONCUR:


BENKE, Acting P, J.


McDONALD, J.




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