Filed 11/14/13 P. v. Surico 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B248948

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA073764)
         v.

CHRISTOPHER SURICO,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Candace
Beason, Judge. Affirmed.


         Mark S. Givens, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.
       Defendant and appellant, Christopher Surico, appeals from the trial court’s
April 24, 2013 post-judgment order denying his motion to modify his sentence in
Los Angeles Superior Court Case No. GA073764. We affirm the trial court’s order.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In an information filed on August 11, 2008 in Los Angeles Superior Court Case
No. GA073764, Surico was charged with two counts of “first degree burglary, person
present,” in violation of Penal Code section 459.1 It was further alleged Surico had
suffered a prior conviction for burglary in case No. BA089473 within the meaning of the
Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had previously
suffered a conviction for the serious felony of burglary within the meaning of section
667, subdivision (a)(1) and had suffered three prior convictions for burglary for which he
served prison terms within the meaning of section 667.5, subdivision (b). Trial on the
matter was bifurcated and, on June 29, 2009 a jury found Surico guilty of both counts of
burglary.2
       After the jury was dismissed, a court trial was held with regard to Surico’s prior
convictions and prison terms. The trial court found true the allegation Surico had
sustained a prior burglary conviction in case No. BA089473 within the meaning of the
Three Strikes law, found true the allegation Surico had suffered a prior conviction for
burglary within the meaning of section 667, subdivision (a)(1) and found true the
allegations Surico had suffered convictions for burglary for which he served prison terms
within the meaning of section 667.5, subdivision (b) in case No. BA089473 and two
other superior court cases.
       In July 2009, before the trial court imposed sentence, Surico’s trial counsel filed a
petition for writ of habeas corpus. At a hearing held on July 24, 2009, defense counsel

1
       All further statutory references are to the Penal Code unless otherwise specified.
2
       The evidence had established that on or about June 24, 2008, Surico entered a
carport to an apartment or condominium complex and took items which were being
stored there under a tarp. The carport had “three open walls. The only walls were the
roof and the back.”

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argued Surico was entitled to a new trial because one of the jurors had looked at Surico’s
sister and, “as he passed her, . . . made the statement ‘thieves.’ ” The trial court
determined the juror’s statement did not amount to misconduct and did not justify a new
trial. Defense counsel next argued the prosecutor had improperly “tried to introduce
evidence [Surico had at one time] escape[d] from prison.” The trial court responded,
“Well, . . . the fact . . . I didn’t allow it to be alleged as a [section] 667.5[, subdivision] (b)
prior doesn’t mean . . . it’s not part of his record for me to consider” with regard to
sentencing. Finally, defense counsel indicated the prosecutor had suggested to the court
“there was only a one-year period when [Surico] was out of custody [when] in fact, there
was a three-year period . . . from 2004 to 2007.” Counsel added, “given [the] opportunity
and the right environment [Surico could] be a productive member of society[.]” In
addition, although he was addicted to heroin, Surico had attempted “on his own to go into
rehab.” Counsel argued, in view of Surico’s history, which did not “involve crimes of
violence or sex crimes,” the trial court should consider a grant of probation.
       After the trial court heard additional argument from Surico’s counsel, argument
from the prosecutor and a statement from Surico, himself, it denied Surico’s petition.
The court noted “the genesis of Mr. Surico’s problems [was] drug addiction” and due to
that addiction he had committed “numerous” residential burglaries. In addition, the trial
court recognized that from 1994 until June 2008, a period of almost 14 years, Surico had
been out of custody or not on parole “for . . . [only] a little less than three years.” Finally,
Surico was on parole at the time the June 24, 2008 burglaries were committed.
       The trial court sentenced Surico on July 24, 2009. Before imposing sentence, the
court indicated it had read the People’s sentencing memorandum, Surico’s motion for a
new trial, his Romero3 motion requesting that his conviction found true with regard to the
Three strikes law be stricken and his motion requesting probation. After denying each of
Surico’s motions, the court imposed sentence. With regard to the burglary alleged in
count 1, the trial court imposed the low term of two years in state prison, then doubled

3
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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the term to four years pursuant to the Three Strikes law. As to the burglary alleged in
count 2, the trial court imposed a term of four years in prison, then stayed the term
pursuant to section 654,4 the stay to become permanent upon Surico’s completion of the
sentence imposed for count 1. The trial court then imposed a term of five years for the
finding made pursuant to section 667, subdivision (a)(1), that Surico had suffered a
conviction for a serious or violent felony, and a term of one year for the finding pursuant
to section 667.5, subdivision (b) that Surico had suffered a prior conviction in case
No. BA253145 for which he served a prison term. The trial court dismissed the
remaining allegations in the interest of justice (§ 1385). In total, Surico was sentenced to
10 years in prison. The trial court recommended that Surico be housed in a facility which
provided drug rehabilitation treatment “and that he receive any benefits of drug treatment
that are available to him within the Department of Corrections.” After imposing a
number of fines and fees, the trial court awarded Surico presentence custody credit for
396 days actually served and 198 days of good time/work time, for a total of 594 days.
       Surico filed a timely notice of appeal from the judgment. In an unpublished
opinion filed November 2, 2010 in People v. Surico, case No. B217884, Presiding Justice
Klein, joined by Justices Croskey and Aldrich, noted Surico had “made multiple
felonious entries into a single residential carport.” The court then rejected Surico’s
arguments that: (1) the carport he entered did not amount to part of an inhabited dwelling
and, even if it did, he could not be convicted of two counts of burglary; (2) the trial court
committed instructional error; and (3) the trial court abused its discretion when it refused
to strike Surico’s prior Three Strikes conviction in the interests of justice. Accordingly,
this court affirmed the judgment in superior court case No. GA073764.
       In November 2012, Surico, acting in propria persona, filed a petition for writ of
habeas corpus in the trial court. The trial court summarily denied the petition because
Surico had not “provided proof of service on the Attorney General or the District


4
       The court indicated it believed the burglaries in this matter “were part of one
continuous course of conduct.”

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Attorney” pursuant to section 1475 and because “the claim raised in the petition could
have been raised during the direct appeal . . . .”
       On April 15, 2013, Surico, again acting in propria persona, filed in the
Los Angeles Superior Court a “Motion to Correct Illegal Sentence[,] Adjust [Section]
4019 Credits and Amend the Abstract of Judgment.” Surico asserted his sentence in case
No. GA073764 was unlawful in that the trial court failed to award him appropriate “pre-
sentence in-custody credits pursuant to . . . [sections] 4019 [and] 1205.5” and to “amend
the [a]bstract of [j]udgment to reflect the changes.” In addition, Surico indicated the
plea in the matter was based in part on his prior conviction in case No. BA089473, in
which he was sentenced on December 12, 1994. He asserts this sentence was
unconstitutional because the plea agreement in that matter consisted of “[t]he mid[-]term
of four years suspended with formal probation: [¶] A drug program; [¶] A year in the
county jail, servable in a drug program[.]” The time was to be served in the Biscailuz
Program in the county jail, Impact House. Surico asserted “[t]his agreement was not
followed, as [he] never went to a drug treatment program, and was subsequently sent to
state prison because of further drug use.”
       A hearing was held on the motion on April 24, 2013. After indicating that section
“4019 credits have been held not to be retroactive,” the trial court denied the motion. On
May 24, 2013, Surico filed a notice of appeal from the trial court’s order and requested
the appointment of counsel to assist him.
                                     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 July 25, 2013, the clerk of this court advised Surico to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. On August 19, 2013, Surico filed a supplemental brief in which he asserted the
portion of his sentence based on the prior unlawful plea entered in case No. BA089473
“[could not] stand.” He indicated, although he was granted probation, “no drug program
was available” and “[t]his [amounted to] a no win situation for [him].” Accordingly, the

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trial court should have stricken the prior conviction “and not enhanced [his] sentence” in
case No. GA073764 with the prior.
       Surico’s contention is without merit as he has failed to show his prior plea in case
No. BA089473 was “unlawful.” With regard to the prior case, Surico simply states he
“never went to a drug treatment program, and was subsequently sent to state prison
because of further drug use.” He then indicates he did not participate in a drug treatment
program because “no . . . program was available.” Surico, however, has presented no
evidence to support his assertion no drug treatment program was available. To warrant
consideration for relief, a defendant’s statement must be corroborated by independent,
objective evidence. (In re Alvernaz (1992) 2 Cal.4th 924, 938, 945.) No such evidence
exists here.
                                 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.)
                                     DISPOSITION
       The trial court’s order denying modification of Surico’s sentence in Los Angeles
Superior Court Case No. GA073764 is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KLEIN, P. J.


We concur:


               CROSKEY, J.                       ALDRICH, J.




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