Filed 11/27/18 P. v. Onwuka CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

After revoking probation and imposing a suspended prison sentence, the trial court recalculated Andy Kejadi Onwuka’s presentence credits. Onwuka filed a notice of appeal asserting the court unlawfully increased his sentence. Onwuka has a second appeal pending in this court challenging the court’s finding him in violation of probation and the subsequent sentencing (case No. G054760).

We appointed counsel to represent Onwuka on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on Onwuka’s behalf.

Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006)

40 Cal.4th 106, 110, 120, 124 (Kelly).)

Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised the following two issues: (1) whether the trial court unlawfully extended the date of Onwuka’s earliest possible release; and (2) whether the court’s decision to retroactively reduce Onwuka’s presentence credit days was motivated by prejudicial animosity towards him.

We gave Onwuka 30 days to file written argument on his own behalf, which he did. The issues Onwuka raised and that are properly before the court in this appeal are the following: (1) whether the court erred by recalculating his credits; and

(2) whether he received ineffective assistance of counsel. In this appeal, Onwuka attempts to raise issues relating to circumstances prior to his initial plea. Those issues are untimely, and we will not address them. Onwuka also attempts to raise issues arising out of a finding he was in violation of probation and the subsequent sentencing. Those issues are properly before the court in his separate probation violation appeal in case No. G054760, and we will address them there.

We have reviewed the record in accordance with our obligations under Wende and Anders, and considered the information counsel and Onwuka provided. We found no arguable issues on appeal. We affirm the judgment.

FACTS

Onwuka pleaded guilty to one felony count of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a), all further statutory references are to the Penal Code), one misdemeanor count of resisting and obstructing an officer (§ 148, subd. (a)(1)), and one misdemeanor count of false representation to a peace officer (§ 148.9, subd. (a)). Onwuka also admitted an allegation that a non-accomplice was present in the home during the residential burglary (§ 667.5, subd. (c)(21). The trial court sentenced Onwuka to six years in prison, suspended the sentence, and placed him on probation for five years. A condition of his probation was that he violate no laws.

A few months later, the prosecution alleged Onwuka violated his probation because he committed a second burglary. After conducting a contested probation revocation hearing, the court found Onwuka violated his probation. The court imposed the previously suspended six-year prison sentence and granted him 1,938 presentence credit days. Onwuka filed a notice of appeal from the judgment. That appeal is currently pending before this court in case No. G054760.

In propria persona, Onwuka filed a “Motion[s] for the Defendant/Prisoner’s Release” and later a “Motion for Defendant/Prisoner’s Release and Sentence Deemed Served #2.” In both motions, Onwuka argued he had accumulated approximately 2,344 days of pre- and post-sentence credits. Therefore, Onwuka contended he had already served his six-year sentence and should be released.

The trial court recalculated Onwuka’s presentence credit days and reduced the number of credit days to a total of 932 days. The court indicated it was reexamining Onwuka’s custody credits in response to his repeated requests. The court determined the credits had been calculated incorrectly, but the correction was not in Onwuka’s favor.

The court issued a lengthy minute order in which it recited its reasoning and authority for recalculating the credits in the manner it did as follows: “‘The sentencing court is responsible for calculating the number of days the defendant has been in custody before sentencing and for reflecting the total credits allowed on the abstract of judgement (sic).’ [Citations.] It is the obligation of the court to determine at the time of sentencing the actual time and conduct credits to be awarded against the sentence. [Citation.] Further, the wrongful grant of custody credits may be corrected at any time by the court. [Citation.] [¶] The ‘failure to award the legally mandated amount of presentence custody credits amounts to an unauthorized sentence that can be corrected whenever it is discovered.’ [Citations.] ‘A circumstance is unauthorized “where it could not lawfully be imposed under circumstances in the particular case such as where the court violates mandatory provisions governing the length of confinement.’ [Citation.]’ (Ibid.) In [People v. Gisbert (2012) 205 Cal.App.4th 277], the appellate court granted the prosecution’s appeal and held ‘the trial court did not have discretion to award presentence custody credits’ at issue there. The same rule applies to . . . Onwuka.” (Italics added.)

The court went on to explain its reasoning regarding the new calculations as follows: “Both pre-sentencing and post-sentencing conduct credits for ‘violent’ felonies listed in section 667.5, subdivision (c) are limited to 15 percent of the actual time served if the defendant is sentenced to state prison. ( . . . [§] 2933.1.) . . . Onwuka was initially placed on probation after execution of sentence was suspended and was awarded full conduct[] credits under section 2900.5. [Citation.] However, after his violation of probation was found, and the execution suspension was lifted by this court, all prior credits are to be recomputed with the limitations of section 2933.1. [Citation.] [¶] [Onwuka] plead[ed] guilty to a violation of section[s] 459/460(a) and admitted the special factual enhancement under section 667.5(c)(21), thus making his offense a ‘violent felony’ under sections 667.5(c) and 2933.1.”

The court thereafter explained its award of credits as follows: “For his initial sentence originally pronounced on April 29, 2015, he was awarded 251 days of actual custody time. [¶] At the time of his probation violation sentencing, [Onwuka] has the additional custody time of the day of his arraignment of September 23, 2015 to his sentencing date of March 17, 2017 as 560 days. [¶] Combining those two periods totals 811 days of actual credits. Then adding the addition credits under . . . [section] 2933.1 of 15 percent of 121 days. [¶] Thus the court calculates [Onwuka’s] total credits of 932 days.” The court then ordered the abstract of judgment corrected to reflect the credits and the section 667.5, subdivision (c)(21), finding. Onwuka filed a notice of appeal asserting the trial court unlawfully increased his sentence.

After the notice of appeal in the case had been filed, Onwuka’s counsel filed a motion for correction of presentence custody credits with the trial court, arguing the court’s recalculation contained an error.[1] Counsel asserted Onwuka was awarded 79 too few actual presentence days and 12 too few conduct days. Counsel explained law enforcement arrested Onwuka on August 21, 2014, and held him in custody until April 29, 2015. This time included the days Onwuka was involuntarily committed to Patton State Hospital, pursuant to sections 1368 and 1370. Counting both the first and last day, counsel calculated a total of 252 days in custody. Law enforcement arrested Onwuka again on May 25, 2015, and held him in custody until August 27, 2015. Counting both the first and last day, counsel calculated a total of 95 days in custody. Finally, law enforcement arrested Onwuka on September 22, 2015, and he remained in custody until March 17, 2017, when the court imposed the previously suspended six-year sentence. Counsel calculated this constituted an additional 543 days in custody. Using these calculations, counsel maintained Onwuka was held in actual pre-sentence custody for a total of 890 days rather than the 811 days the court previously calculated. Counsel requested the court correct the error and prepare an amended abstract of judgment that would be forwarded to the Orange County Sheriff’s Department. The trial court granted the motion and a copy of the trial court’s minute order has been filed with this court.

DISCUSSION

We first address counsel’s issues, and subsequently address Onwuka’s issues and explain why they fail.

Counsel questions whether the trial court unlawfully extended the date of Onwuka’s earliest possible release. A review of the record reflects the court accurately calculated Onwuka’s credits consistent with applicable statutory mandates. We find no error.

Counsel also questions whether the trial court’s decision to retroactively reduce Onwuka’s presentence credit days was motivated by prejudicial animosity towards Onwuka. Nothing in the record suggests the trial court acted out of prejudice towards Onwuka. We find no error.

Onwuka questions whether the court improperly recalculated his credits. In Daniels, supra, 106 Cal.App.4th at page 739, the court revoked defendant’s probation and sentenced him to prison. The trial court limited conduct credits against his prison sentence to 15 percent of his actual custody time (§ 2933.1, subd. (c)). (People v. Daniels (2003) 106 Cap.App.4th 736, 739.) On appeal, defendant argued that the conduct credits the court awarded him for time spent in local custody as a condition of his probation must be determined without the section 2933.1, subdivision (c), limitation. (Daniels, supra, 106 Cal.App.4th at p. 739.) The Daniels court rejected this argument and held that conduct credits against a defendant’s prison sentence attributable to a jail term served as a condition of probation are limited by section 2933.1, subdivision (c). (Daniels, supra, 106 Cal.App.4th at p. 740.) The court reasoned that statutory language and legislative history establish section 2933.1, subdivision (c), applies in every situation where a court sentences a defendant to prison. (Daniels, supra, 106 Cal.App.4th at p. 741.) We agree and find no error in the court recalculating Onwuka’s credits after his suspended prison sentence was imposed.

Onwuka also complains his appellate counsel was ineffective for filing the notice of appeal in this case over his objection and refusing to withdraw the appeal after Onwuka requested it be withdrawn. Onwuka contends he had a “speedy, adequate, and lawful remedy” before counsel interceded, but does not identify what that remedy was. Onwuka suggests the record designated by counsel was inadequate and asserts counsel’s “assistance in its entirety [was] ineffective, incompetent and suspicious like spelling Judge Gregg L. Prickett’s name wrong on all the briefs.”

A defendant has the burden of proving he received ineffective assistance of counsel. To establish such a claim, defendant must show his counsel’s performance fell below an objective standard of reasonableness. (Strickland v. Washington (1984)

466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Specifically, to prevail on an ineffectiveness of counsel claim, a defendant must satisfy a two-pronged test. First, the defendant must show counsel’s performance fell below an objective standard of reasonableness. (Strickland v. Washington, supra, 466 U.S. at

pp. 687-688, 694.) Second, “prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389.)

“In assessing the adequacy of counsel’s performance, a court must indulge ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citations.]’ [Citation.] If ‘the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’ [Citation.]” (People v. McDermott (2002) 28 Cal.4th 946, 988.)

Onwuka does not identify what alternative remedy he believes would have been more advantageous for him than filing an appeal. Nor does he demonstrate how filing a notice of appeal falls below an objective standard of reasonableness. Even if counsel’s assistance was ineffective for filing the appeal, Onwuka suffered no prejudice. There is no reasonable probability that if counsel had not filed this appeal, Onwuka would have received a more favorable calculation of his credits.

Onwuka complains counsel only provided this court with a partial record. This is incorrect. Our review of the record confirms the record provided was adequate and sufficient supplemented by this court taking judicial notice of the Ex Parte Motion for Correction of Presentence Custody Credits and Correction of Abstract of Judgment filed on March 2, 2018.

Lastly, Onwuka suggests counsel’s misspelling of the trial judge’s name is evidence of ineffectiveness. We fail to see how such a misspelling demonstrates ineffective assistance of counsel.

The record does not support a finding of ineffective assistance of counsel. Many of Onwuka’s complaints predate his initial guilty plea, and we do not address them in this opinion. He argues he was denied a jury trial, improperly drugged with mental health medication, and forced to plead guilty. He complains about his confinement at Patton State Hospital, the denial of a speedy trial, his lack of competency at the time of the plea, and government misconduct relating to problems he had in securing legal tools while incarcerated prior to his plea. “[W]here a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay.” (People v. Senior (1995)

33 Cal.App.4th 531, 538.) Onwuka has not shown any justification for not raising these issues in a prior appeal. None of these issues are properly before the court in this appeal.

DISPOSITION

The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

MOORE, J.