P. v. Pouncy
Filed 3/27/06 P. v. Pouncy CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. THANE POUNCY, Defendant and Appellant. | A112629 (San Francisco County Super. Ct. No. 196401) |
Appellant's counsel filed an opening brief in which she raises no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND
Appellant was charged with one count of second degree robbery (Pen. Code, § 212.5, subd. (c))[1]; and one count of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)). The initial complaint against appellant also alleged three prior prison term enhancements (§ 667.5, subd. (b)). Appellant waived time for the preliminary hearing and was eventually held to answer after the hearing. An information was later filed alleging the same charges and enhancements.
When appellant was arraigned on the information he declined to waive time for trial, and the last day for trial pursuant to section 1382 was determined to be October 31, 2005.
As that deadline approached, appellant persisted in his request for a speedy trial and the court ordered the case to trail until appellant's counsel became available to conduct the trial. On October 31, 2005, the court found that defense counsel was not available to conduct the trial and that good cause existed to continue the case. Similar orders were entered on the next three days.
On November 4, 2005, defense counsel moved to dismiss the case based on a violation of appellant's right to speedy trial. Counsel argued that the case should have been sent to a courtroom for trial on November 3, 2005, because trial counsel was available that day after 2:45 p.m.
A motion to dismiss was denied and the case was transferred to a different department and the jury trial commenced.
Thereafter, on November 7, 2005, appellant entered a guilty plea to the count alleging robbery in the second degree and, later that month, pursuant to the negotiated plea agreement, the court imposed a low term of two years for the robbery conviction. The other charge and enhancements were dismissed and stricken. Appellant was awarded a total of 316 days presentence custody credits and fines were imposed.
This timely appeal followed.
DISCUSSION
It is undisputed that at the readiness hearing on October 17, 2005, the court and all parties agreed that the 60th day from the filing of the information was October 31, 2005. The court made a finding that it would be physically impossible for appellant's counsel to represent him in trial on that day because she was in trial on another case. Appellant declined to accept different counsel and did not request to represent himself; and therefore, the court found that appellant wished to continue with the same appointed counsel even if that meant the case could not be sent out to trial until after the 60-day deadline.
On October 27, 2005, the court reiterated these findings and ordered the case to trail on a day-to-day basis until his attorney became available for trial. Good cause was based on the unavailability of appellant's attorney due to her involvement in another ongoing jury trial.
On November 4, 2005, defense counsel informed the court that the jury in the other case had returned verdicts at 2:45 p.m. on November 3 and that, therefore, the instant case should have been sent out for trial at that time. The court denied the motion and ordered that appellant's case commence trial immediately on November 4.
We have carefully reviewed the entire record and find no arguable appellate issue. The record reflects good cause for each of the delays in commencing the trial, including the last delay. We also find no error in appellant's sentencing and conclude that the presentence credits for time served were properly calculated and awarded.
DISPOSITION
The judgment is affirmed.
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Kline, P.J.
We concur:
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Lambden, J.
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Richman, J.
[1] All further references are to the Penal Code.
