Filed 10/11/13 P. v. Macias CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066301
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1408086)
                   v.

LORENZO BALLADARES MACIAS,                                                               OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Linda A.
McFadden, Judge.
         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Cornell, J. and Detjen, J.
       On August 27, 2010, appellant, Lorenzo Balladares Macias, pursuant to a plea
agreement, pleaded no contest to unlawfully taking or driving a motor vehicle (Veh.
Code, § 10851, subd. (a)) and admitted an allegation that he had suffered a “strike.”1 The
terms of the plea agreement included the following: Appellant would receive a prison
sentence of 32 months, provided that he, inter alia, return to court for sentencing on
November 1, 2010, but the court could impose a prison term of up to six years if
appellant did not return to court on that date.
       On November 1, 2010, appellant failed to appear for sentencing, and a warrant for
his arrest was issued.
       On October 10, 2012, appellant appeared in court, at which time the court imposed
a prison sentence of four years, consisting of the two-year midterm on the instant offense,
doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd.
(c)(1)).
       Appellant filed a timely notice of appeal. He did not request, and the court did not
issue, a certificate of probable cause (Pen. Code, § 1237.5).
       Appellant’s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
       Appellant has responded to this court’s invitation to submit additional briefing by
submitting a letter, the contents of which we discuss below. We affirm.




1      We use the terms “strike,” in its noun form, and “strike conviction” as synonyms
for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§
667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that
subjects a defendant to the increased punishment specified in the three strikes law.


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                                             FACTS
       The prosecutor, in stating the factual basis for appellant’s plea, stated that on
August 30, 2009, “[appellant] drove his friend’s [car] after having stolen it with intent to
deprive the owner of title to and possession of said vehicle ….”
                                         DISCUSSION
       In his letter to this court, appellant asks this court to strike his strike conviction
under Penal Code section 1385. However, appellant did not make such a request,
commonly called a Romero motion, in the trial court. (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 530.) Therefore, he may not do so on appeal. (People
v. Carmony (2004) 33 Cal.4th 367, 375–376 [a defendant’s failure to request that the trial
court exercise its discretion to dismiss or strike a conviction under Romero “waives or
forfeits his ... right to raise the issue on appeal”].)
       Appellant also asserts in his letter, as best we can determine, that the Department
of Corrections and Rehabilitation (DCR) has incorrectly computed his post-sentence
conduct credits. Appellant apparently bases this contention on the provisions of the three
strikes law that limit to 20 percent the conduct credits a defendant sentenced under the
three strikes law may earn while in prison custody. (See Pen. Code, §§ 667.5, subd.
(c)(f); 1170.12, subd. (a)(5).) Appellant, it appears, asserts that the 20 percent post-
sentence credits limitation does not apply to him because he has suffered one strike. He
is incorrect on this point. The 20 percent limitation on post-sentence conduct credits
applies to all persons sentenced under the three strikes law, including those with only one
strike. (Pen. Code, § 1170.12, subd. (a)(5).)
       Appellant’s claim fails, however, for a more fundamental reason. His appeal is
from the judgment, i.e., his conviction and sentence, and the trial court properly did not
award appellant post-sentence conduct credits. (See People v. Mendoza (1986) 187
Cal.App.3d 948, 954 [director of DCR has the duty of determining post-sentence custody




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credit].) Any challenge to appellant’s post-sentence credits is therefore not cognizable on
this appeal.
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is affirmed.




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