Filed 4/11/17 P. v. Rodriguez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EMERSON SAMUEL RODRIGUEZ,

Defendant and Appellant.
H043304
(Santa Cruz County
Super. Ct. No. F28477;
Santa Clara County
Super. Ct. No. F1349491)
Defendant Emerson Samuel Rodriguez appeals from the judgment of conviction entered in Santa Cruz County Superior Court case No. F28477 (case No. F28477) and Santa Clara County Superior Court case No. F1349491 (case No. F1349491). In case No. F1349491, defendant had been sentenced to a so-called split sentence under realignment and released on mandatory supervision (see Pen. Code, § 1170, subd. (h)(5)). While under mandatory supervision in that case, defendant committed the offenses of which he was later convicted in case No. F28477. In February 2016, following a jury trial in case No. F28477, the trial court sentenced defendant in both cases.
This court appointed counsel to represent defendant. Defendant’s appointed appellate counsel filed an opening brief that raises no issues, but requests this court to independently review the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant was apprised of his right to file a supplemental brief, and, with this court’s permission, he belatedly filed a supplemental letter brief.
We have undertaken a review of the entire appellate record and defendant’s written contentions, and we have found no arguable issues. (See Wende, supra, 25 Cal.3d at p. 443.) We provide the following brief description of the procedural history and factual background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
I
Procedural Background
A. Case No. F1349491
A felony complaint filed on December 31, 2013 alleged three felony offenses committed by defendant on or about December 26, 2013 in Santa Clara County: (1) a violation of Vehicle Code section 10851, subdivision (a), committed by driving and taking “a vehicle, a Ford truck . . . without the consent of the owner and with the intent to deprive the owner of title to and possession of the vehicle” (count 1); (2) a violation of former section 496, subdivision (a), committed by “conceal[ing] and withhold[ing] and aid[ing] in concealing and withholding from the owner, property, [a] Ford truck, that had been stolen, knowing the property to have been stolen” (count 2); and (3) a violation of former section 496, subdivision (a), committed by “conceal[ing] and withhold[ing] and aid[ing] in concealing and withholding from the owner, property, [d]ebit card and identification, that had been stolen, knowing the property to have been stolen” (count 3). The felony complaint also alleged that defendant had suffered a prior juvenile adjudication (robbery) that constituted a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). On March 6, 2014, defendant pleaded no contest to counts 1 and 3 in exchange for a negotiated disposition.
On April 21, 2014, consistent with the plea agreement, the trial court imposed a three-year sentence on count 1 (consisting of two years in county jail followed by a one year period of mandatory supervision) and a concurrent three-year sentence on count 3 (see §§ 496, subd. (a), 1170, subd. (h)(1), (h)(5)(B), Veh. Code, § 10851, subd. (b)). The trial court dismissed count 2 and the Three Strikes allegation.
At the time of sentencing in April 2014, the trial court imposed a restitution fine of $1680 (§ 1202.4, subd. (b)), and an additional restitution fine of $1680 (§ 1202.45, subd. (b)), which was suspended. The court imposed a court operations assessment of $80 ($40 x 2) (§ 1465.8) and a court facilities assessment of $60 ($30 x 2) (Gov. Code, § 70373, subd. (a).) The court also imposed an emergency medical air transportation fine of $4.00 (Gov. Code, § 76000.10, subd. (c)) and a criminal justice administration fee of $129.75 (Gov. Code, §§ 29550, 29550.1, 29550.2). The court further determined that defendant was entitled to total credit of 233 days, consisting of 117 actual days and 116 days of conduct credit (§ 4019).
On March 11, 2015, a petition for revocation of mandatory supervision was filed against defendant. It alleged, among other things, that on March 2, 2015, defendant had been arrested for violations of Health and Safe Code sections 11377, subdivision (a), and 11550, subdivision (a). The petition stated that defendant had been released on mandatory supervision on December 27, 2014. It also stated that a probation hold had been placed on defendant on March 3, 2015.
On March 12, 2015, supervision was preliminarily revoked. The March 16, 2015 minute order shows that mandatory supervision remained revoked and that defendant was remanded to custody.
On April 13, 2015, defendant admitted violating mandatory supervision. The minute order reflects that mandatory supervision was reinstated, defendant was ordered to serve a 90-day term and to report to his adult probation officer within 48 hours of his release, and he was committed. The court determined that defendant had credit of 85 days, consisting of 43 actual days and 42 days of conduct credit (§ 4019). The next appearance was set for May 19, 2015.
At the hearing on May 19, 2015, defendant was not present. The court revoked mandatory supervision and ordered a bench warrant.
B. Case No. F28477
An information, filed on August 24, 2015, charged defendant with new offenses committed on or about May 6, 2015 and stated a number of allegations. By first amended information filed October 23, 2015, defendant was charged with committing the following offenses on or about May 6, 2015: (1) felony second degree robbery (§§ 211, 212.5, subd. (c)) (count 1); (2) felony assault with a deadly weapon, namely scissors (§ 245, subd. (a)(1)) (count 2); (3) misdemeanor giving false information to a police officer (§ 148.9, subd. (a)) (count 3); (4) misdemeanor possession of injection or smoking device (Health & Saf. Code, § 11364.1, subd. (a)) (count 4); and (5) misdemeanor resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)) (count 5). It alleged as to count 1 that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). It further alleged as to both counts 1 and 2 that defendant has served prior prison terms (§ 667.5, subd. (b)).
The first amended information contained a number of additional sentencing allegations. It alleged that defendant had previously suffered specified felony convictions within the meaning of section 1203, subdivision (e)(4) (presumptive ineligibility for probation). As to both counts 1 and 2, it alleged that defendant had committed the offenses while on felony probation within the meaning of section 1203, subdivision (k) (probation ineligibility). It further alleged as to those two counts that the defendant was not eligible to serve his term of imprisonment in the county jail (§ 1170, subd. (h)(3); see § 1170, subd. (f)).
On October 23, 2015, defendant pleaded guilty to the three charged misdemeanor offenses.
On November 6, 2015, following a jury trial, defendant was found guilty of second degree robbery (count 1) and assault with a deadly weapon (count 2). The jury found true the enhancement allegation that defendant personally used a deadly weapon in committing the robbery (§ 12022, subd. (b)(1)).
On November 9, 2015, the prosecutor informed the court that the People were not proceeding on the allegation of probation ineligibility under section 1203, subdivision (k), because defendant was on mandatory supervision, not probation, when the new crimes were committed.
On February 2, 2016, the trial court found true one prior prison term allegation (case No. F1244089). It found defendant ineligible for probation. (§ 1203, subd. (e)(4).) The court began to sentence defendant but continued the sentencing hearing to February 4, 2016.
C. Sentencing in case Nos. F28477 and F1349491
On February 4, 2016, the trial court “restructure[d]” the sentence that it had “indicated” on February 2, 2016 in case No. F28477, and it imposed a lesser sentence. In case No. F28477I, the court imposed a total prison term of five years, consisting of a three-year term for the second degree robbery (§ 213, subd. (a)(2)), a consecutive one year enhancement term for personal use of a deadly or dangerous weapon in the commission of the robbery (§ 12022, subd. (b)(1)), and another consecutive one-year enhancement term for the prior prison term (§ 667.5, subd. (b)). The court imposed and then stayed a three-year prison term for the conviction of assault with a deadly weapon (§§ 245, subd. (a)(1); 654). It also imposed concurrent sentences of 180 days on the three misdemeanor convictions in the case.
The trial court also sentenced defendant in case No. F1349491. It impliedly terminated mandatory supervision, and it imposed concurrent three-year terms on his two convictions (see Veh. Code, § 10851, subd. (a), former § 496, subd. (a); 1170, subd. (h)).
As to custody credits in case No. F28477, the court determined that defendant was entitled to total credit of 316 days, consisting of 275 actual days plus 41 days conduct credit, calculated at 15 percent. (See § 2933.1.) The trial court also determined that, in case No. F1349491, defendant had total credit of 568 days, consisting of 397 (365 + 32) actual days of custody, 59 days of conduct credit, calculated at 15 percent (see § 2933.1; In re Reeves (2005) 35 Cal.4th 765, 772-773), plus 112 (76 + 36) days of mandatory supervision.
In a third Santa Cruz County case, case No. M87301, defendant pleaded no contest to misdemeanor petty theft (§ 484, subd. (a)). The trial court sentenced defendant to 180 days of county jail with credit for 180 days served. The trial court ordered defendant to pay $420.99 in restitution to Target.
On February 5, 2016, the court imposed fines and fees. An abstract of judgment, filed February 5, 2016, reflected the imposition of a $4,500 restitution fine (§ 1202.4, subd (b)) and an additional restitution fine of $4,500 (§ 1202.45, subd. (a)), which was suspended unless parole is revoked. The court imposed a court operations assessment of $200 ($40 x 5) (§ 1465.8, subd. (a)(1)) and a court facilities assessment of $150 ($30 x 5) (Gov. Code, § 70373). The abstract stated defendant’s credit in case Nos. F28477 and F1349491.
On March 2, 2016, defendant filed a notice of appeal in case F28477.
On March 23, 2016, defendant filed an amended notice of appeal in in case Nos. F28477 and F1349491. It stated that the appeal in case No. F1349491 was based on grounds of sentencing error that arose after entry of guilty pleas and did not affect the validity of those pleas.
In August 2016, appointed appellate counsel requested the superior court to amend the judgment to reduce both the restitution fine and the parole revocation restitution fine to $3,180. The court granted the request.
An amended abstract of judgment, filed September 12, 2016, reflected the reduction of the restitution fine (§ 1202.4, subd (b)) and the corresponding parole revocation restitution fine (§ 1202.45, subd (a)) to $3,180. The abstract stated the credits in case Nos. F28477 and F1349491.
D. Proceedings on Appeal
In a letter dated November 7, 2016, this court informed defendant: “You may submit any argument you wish to make for yourself, but you must do so in writing within thirty (30) days after the date of this letter.” This court subsequently granted defendant’s motion to personally file an untimely supplemental brief.
On January 3, 2017, defendant filed a handwritten, two-page supplemental letter brief. In it, defendant indicates that on October 22, 2015, the trial judge offered him a three-year plea deal in case No. F28477. Defendant states that, after a discussion with his counsel, he rejected the court’s offer based on his defense counsel’s assurances that his crime would not be considered a robbery, the judge would eventually reduce the charge to a theft, and the assault charge would be dismissed because no injuries were inflicted. Defendant reports that his defense counsel also indicated that counsel would persuade the trial court to allow him to enter a drug rehabilitation facility where he could work on his substance abuse and have “a stable housing environment.” Defendant asserts that his counsel misled him without regard to his best interest and “hardly represented” him. According to defendant, defense counsel told him that other cases being handled by counsel were more severe and took most of his attention and time. In addition, based on their conversations, defendant believed that defense counsel’s personal marital troubles may have affected the handling of his case. Defendant asserts that he would have accepted the judge’s offer if he had known what he knows now.
II
Factual Background
A. Case No. F28477
At approximately 5:30 on May 6, 2015, defendant entered Santa Fe Foods on 133 East Lake Avenue in Watsonville, California. He asked a store employee for the location of beer, and the employee could smell alcohol emanating from defendant. The employee took defendant to the refrigerator containing beer. A female, who the parties stipulated at trial was defendant’s girlfriend at the time, followed them.
The store manager saw defendant, who was with a female, take an 18-pack of Budweiser beer out of a refrigerator and then walk past the cash registers without paying for it. The store manager intercepted defendant, who was moving toward the store’s rear exit with his girlfriend. The store manager asked defendant whether he had paid for the beer, and, when defendant said he had already paid for the beer, the manager asked defendant to show him the receipt. The manager told him he could not take the beer if he did not pay for it. The manager thought that defendant possibly was under the influence of drugs; the manager signaled for assistance and the employee, who had previously helped defendant, began to run toward the manager. Defendant put the beer down on a nearby counter. With his right hand, defendant pulled a pair of scissors out of his clothing and swung the scissors at the manager. The manager defensively raised an arm, which defendant thrust away with his other arm, and ducked. The manager was very afraid, and the store employee coming to the manager’s aid was frightened. The employee called 911 with his cell phone.
Defendant and his girlfriend headed for the exit; when defendant began turning back toward the store’s interior, she attempted to keep him from going back. Defendant walked back toward the beer, holding the scissors in his hand. Defendant announced that he was going to take the beer anyway. Defendant called the store manager a “chicken” and a “mother fucker,” and he grabbed the beer. The manager and the employee who had called 911 moved further away from defendant; both were afraid. The manager was also concerned for the safety of his employees and customers.
Defendant left with the beer through the store’s back exit. The manager, and other store employees, including the store employee on the 911 call, followed defendant outside. Defendant walked away through the cars in the parking lot, across Sudden street, toward Waters Alley. Defendant gestured with his middle finger. Defendant took off his shirt. He went down the alley.
Officers responded to a police dispatch concerning the incident, and they began looking for defendant. Watsonville Police Officer Richard Delfin spotted defendant when he looked down an alley; the officer saw defendant running and jumping a fence. Officer Delfin got out of his patrol car, and he radioed other officers.
Watsonville Police Officer Rocha spotted defendant, who was shirtless, sweating, and breathing very heavily, walking on a residential driveway toward Jefferson Street. When the officer exited his vehicle and approached defendant on foot, defendant ran in the opposite direction toward a backyard and the officer gave chase. Officer Rocha caught up to defendant in a residential backyard, and he used a taser to apprehend defendant.
During the search incident to arrest, Officer Delfin found a pair of scissors in defendant’s right back pants pocket. In defendant’s right front pants pocket, Officer Delfin found part of a pen with a little straw attached, a device commonly used to snort drugs.
At trial, the parties stipulated that the person carrying the Budweiser in the video was defendant. They also stipulated that defendant had no money at the time of his arrest. It was further stipulated at trial that defendant had pleaded guilty in the case to (1) “resisting, obstructing or delaying arrest when he fled from Police Officers Delfin and Rocha, a violation of Penal Code [section] 148(A)”; (2) “giving false information to a police officer by giving the fake name Oscar Bonilla Rodriguez when arrested by Police Officer Delfin, a violation of Penal Code [section] 148.9”; (3) “possession of controlled substance ingestion devise [sic], a violation of Health and Safety Code [section] 11364.”
III
Discussion
In his supplemental letter brief, defendant essentially claims that, but for his counsel’s deficient advice and representation, he would have accepted a plea offer from the court and obtained a better outcome. (See Lafler v. Cooper (2012) 566 U.S. 156, 164; Strickland v. Washington (1984) 466 U.S. 668, 687-689, 694, 700 (Strickland).) His contentions are in essence ineffective assistance of counsel claims.
To prevail on a claim of ineffective assistance of counsel, a defendant must establish both deficient performance by counsel and prejudice. (Strickland, supra, 466 U.S. at pp. 687-689, 694, 700.) A defendant must show both that his “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms” (id. at pp. 687-688) and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) When such claims depend on facts outside the appellate record, they are appropriately raised by petition for habeas corpus rather than on appeal. (See People v. Black (2009) 176 Cal.App.4th 145, 153; People v. Barella (1999) 20 Cal.4th 261, 272; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Review on direct appeal is limited to the appellate record. (People v. Jenkins (2000) 22 Cal.4th 900, 952.) Defendant’s ineffective assistance of counsel claims cannot be resolved on the present record.
We have carefully considered defendant’s contentions and conducted an independent review of the record. We find no arguable issues on appeal.
DISPOSITION
The judgment is affirmed.




_________________________________
ELIA, J.

WE CONCUR:



_______________________________
RUSHING, P. J.



_______________________________
PREMO, J.