P. v. Zeller
Filed 3/11/10 P. v. Zeller CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. JAMES D. ZELLER, Defendant and Appellant. | B218501 (Los Angeles County Super. Ct. No. KA084087) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Thomas C. Falls, Judge. Affirmed.
Jonathan B. Steiner, Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________
Appellant James D. Zeller was charged with driving under the influence with three prior convictions for driving under the influence (Veh. Code, 23152, subd. (a), 23550, 23550.5.) He was also charged with possessing a controlled substance (Health and Saf. Code, 11350, subd. (a)), and driving on a suspended license. (Veh. Code, 14601.2, subd. (a).) A 2007 prior conviction was charged as a prior prison term. (Pen. Code, 667.5, subd. (b).)
Following an unsuccessful Marsden motion, appellant waived his trial rights and pled no contest to the driving under the influence charge and admitted the prior prison term allegation, in return for a state prison term of three years. Prior to rendition of judgment, appellant moved to withdraw his guilty plea based upon the discovery of evidence which would provide him a defense to the under the influence charge. The trial court, after a hearing, denied the motion. Appellant was sentenced to state prison for the agreed-upon three-year term, consisting of the two-year middle term for the offense enhanced by one year for the prior prison term. Appellant was awarded 584 days pre-sentence custody credits, which was later amended to 585 days by the trial court. The court additionally imposed restitution fines of $200 (Pen. Code, 1202.4, 1202.45), a court security fee of $20 (Pen. Code, 1465.8, subd. (a)(1)), and a criminal conviction assessment fee of $30. (Govt. Code, 70373.) The court also imposed the DUI fine with its penalty assessments (Veh. Code, 23546), but sentenced appellant to serve additional days in jail in lieu of this fine, and credited appellant with days that he had served in custody for that purpose.
Appellant timely filed a notice of appeal and sought from the trial court a Certificate of Probable Cause to allow him to appeal the denial of his plea withdrawal motion. The trial court denied the Certificate. On October 8, 2009, this court issued an Order to Show Cause why the appeal should not be dismissed since no Certificate of Probable Cause was on file. On November 16, 2009, this court denied appellant's Petition for a Writ of Mandate seeking an order that the trial court issue such a Certificate. On January 5, 2010, this court granted appellant's motion to amend his notice of appeal to appeal the sentence, an order made after the plea that does not affect the validity of the plea. Consequently, this appeal solely concerns issues related to the sentence, including the determination of credits and imposition of fines and fees.
We have examined the entire record and are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.) Specifically, the erroneous calculation of the pre-sentence custody credits to which appellant was entitled has been corrected in the trial court, and an Amended Abstract of Judgment has been issued. The fines imposed are authorized by law. Consequently, this appeal must fail.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J.
We concur:
KRIEGLER, J.
WEISMAN, J.*
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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
