Fear Not Law Articles: P. v. Neligh

P. v. Neligh

Filed 3/23/07 P. v. Neligh CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v. A115500

HOWARD IRVING NELIGH, (HumboldtCounty

Super. Ct. No. CR064289)

Defendant and Appellant.

_______________________________________/

Howard Irving Neligh appeals his conviction, following a guilty plea, of one count of petty theft with a prior theft-related offense. (Pen. Code,^{^[1]} 666.) His appellate counsel has raised no issues on appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel also advised appellant in writing that a Wende brief was being filed and that appellant was entitled to file his own statement identifying any issues he wanted to call to the courts attention. In response, appellant has filed a supplemental brief. (See People v. Kelly (2006) 40 Cal.4th 106.)

BACKGROUND

In August 2006, the People filed a complaint charging appellant with one count of

taking personal property belonging to a supermarket, having previously been convicted two years earlier of petty theft with a prior conviction. The complaint alleged a 1997 Shasta County conviction of first degree burglary as a prior strike. ( 667, subds. (d), (e), 1170.12, subds. (b), (c).) It also alleged that appellant served four prior prison terms. ( 667.5, subd. (b).)

Pursuant to a negotiated plea, appellant pled guilty to the present charge and admitted the prior strike, and the People recommended the mitigated term of 16 months, doubled to 32 months because of the prior strike. The court imposed sentence accordingly, less credit for time served, and imposed a restitution fine of $400.

Appellant filed a timely notice of appeal.

DISCUSSION

Appellant was represented by counsel throughout the proceedings. He was fully apprised of his constitutional rights and the consequences of his plea. He expressly waived his rights, and his waiver was knowing, intelligent and voluntary. He specifically admitted the theft from the supermarket. There was no error in the sentence, which was in accord with applicable law and the negotiated disposition. Custody credits were calculated accurately. He received a fair hearing and due process.

In a supplemental brief filed in propria persona, appellant appears to argue he should have been granted probation under Proposition 36 ( 1210.1) or community service following his release from county jail, where he had been in custody since his arrest on the current offense. As he did not raise these arguments below, they are waived on appeal. In any case, he was ineligible for either disposition. Prop. 36 probation applies only to nonviolent drug possession offenses, and admission of the prior strike precludes probation and suspension of imposition or execution of sentence. ( 1170.12, subd. (a)(2).) He also argues that the doubling of his sentence term was not statutorily mandated. He is incorrect. ( 1170.12, subd. (c)(1).) He contends he was denied effective assistance of counsel because his attorney did not move to strike his prior strike or comply with his request to see the supermarket surveillance videotape or present other evidence. The record does not support his contention. On appellants behalf, defense counsel negotiated an extremely favorable disposition in light of appellants criminal history: four prior prison term allegations were struck and a mitigated term was imposed, resulting in a total sentence of three years instead of a possible maximum of ten years. Once appellant agreed to the disposition, evidentiary questions were moot. He finally argues that no presentence report was prepared. Not only did he fail to raise this omission below, he agreed to the proposed mitigated sentence, thereby obviating the need for the probation departments analysis of factors in mitigation. ( 1203, subd. (g), Cal. Rules of Court, rules 4.411(a), 4.411.5(a)(9).)

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Gemello, J.

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^{^[1]}All further section references are to the Penal Code.

Description	Defendant appeals his conviction, following a guilty plea, of one count of petty theft with a prior theft related offense. (Pen. Code, 666.) His appellate counsel has raised no issues on appeal and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel also advised appellant in writing that a Wende brief was being filed and that appellant was entitled to file his own statement identifying any issues he wanted to call to the courts attention. In response, appellant has filed a supplemental brief. (See People v. Kelly (2006) 40 Cal.4th 106.) The judgment is affirmed.
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