P. v. Terrell

Filed 8/8/06 P. v. Terrell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. John Vogt, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On November 23, 2005, the Fresno County District Attorney filed a first amended felony complaint in the central division of superior court charging appellant Robert Ernest Terrell as follows: count I--felony theft from an elder or dependent adult (Pen. Code, § 368, subd. (d)) entailing property with a value in excess of $50,000 (Pen. Code, § 12022.6, subd. (a)(1)), and count II--misdemeanor contracting without a license (Bus. & Prof. Code, § 7028). The district attorney specially alleged appellant had served a prior prison term (Pen. Code, § 667.5, subd. (b)).

On the same date, appellant was arraigned on the amended pleading, pleaded not guilty to the substantive counts, and denied the special allegation.

On December 1, 2005, appellant entered into a plea agreement evidenced by a felony advisement, waiver of rights, and plea form. Pursuant to the change of plea form, appellant withdrew his not guilty plea, pleaded no contest to the substantive counts of the first amended felony complaint, and acknowledged he was subject to a maximum term of four years in state prison as a result of the plea. In exchange, the prosecution agreed to dismissal of the special allegation.

On December 23, 2005, the prosecution filed a sentencing statement and urged the court to impose a term of three years in state prison and to order appellant to pay $66,690 in restitution to the victims of his crimes.

On January 23, 2006, the court denied appellant probation and sentenced him to the middle term of three years on count I. The court also ordered that any terms of imprisonment for violations of parole based on this same conduct be served concurrently with the three-year term imposed on count I. The court imposed a restitution fine of $1,000 (Pen. Code, § 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), imposed a $20 court security fee, and ordered appellant to pay $66,690 in restitution to the victims of his offenses (§ 1202.4, subd. (f)). The court also awarded appellant 394 days of custody credits and ordered him to provide a specimen for DNA testing (§ 296).

On February 15, 2006, appellant filed a timely notice of appeal based on the sentence or other matters occurring after the plea (Cal. Rules of Court, rule 30(b)) and alleging ineffective assistance of trial counsel.

STATEMENT OF FACTS

The following facts are taken from the short form report of the probation officer filed January 23, 2006:

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