P. v. Surico
Filed 11/14/13 P. v. Surico CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,
Plaintiff and Respondent,
v.
Christopher Surico,
Defendant and Appellant.
B248948
(Los Angeles
County
Super. Ct.
No. GA073764)
APPEAL from
an order of the Superior Court
of
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.
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.
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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 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.â€
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 Romero
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 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,
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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.â€
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
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 Attorney†pursuant to section
1475 and because “the claim raised in the petition could have been raised
during the direct appeal . . . .â€
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.â€
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
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
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. (
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. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
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.
further statutory references are to the Penal Code unless otherwise specified.
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.â€
