Opinion
G058140
03-26-2020
THE PEOPLE, Plaintiff and Respondent, v. SHAWN JUNIOR CHANDLER, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF2952) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
We appointed counsel to represent Shawn Junior Chandler 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 Chandler'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, counsel provided the court with one issue that might arguably support an appeal. Counsel questioned if Chandler is entitled to a recalculation of his custody credits following a remand for a determination whether the trial court would exercise its discretion to strike the Penal Code section 667, subdivision (a) (section 667(a)), enhancement.
We gave Chandler 30 days to file written argument on his own behalf, which he did. In his supplemental brief, Chandler challenges his underlying conviction, and indirectly challenges the trial court's denial of his motion to strike the section 667(a) enhancement.
We have reviewed the record in accordance with our obligations under Kelly and Wende. We found no arguable issues on appeal. We affirm the judgment.
FACTS
A jury convicted Chandler of one count of attempted premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a), all further statutory references are to the Penal Code ), and one count of assault with a deadly weapon (§ 245, subd. (a)(1)), and found true various enhancements. At a bench trial, the trial court concluded he suffered various prior convictions, including a prior serious felony.
In People v. Chandler (Jan. 23, 2019, G054869) [nonpub. opn.], we affirmed in part, reversed in part, and remanded. We remanded the matter to allow the trial court to exercise its discretion as to whether to strike the five-year prison term imposed under section 667(a). Also, we directed the trial court to correct a clerical error in the amount of custody credits listed on the indeterminate abstract of judgment.
On remand, the trial court held a hearing and decided it would not strike the section 667(a) enhancement because of the nature of the crimes and Chandler's prior criminal history. The court commented the crime was a brutal stabbing and noted it already struck the great bodily injury enhancement and the penalty for two prison priors. The court amended the indeterminate abstract of judgment to reflect the correct figure of 163 days of actual presentence custody credit.
DISCUSSION
In his supplement brief, Chandler attempts to challenge his underlying conviction. He argues the "prosecution by way of indictment was the only party to introduce evidence and witnesses." He also states, "in light of the negative DNA results the case must be remand [sic] to the Superior Court's [sic] with instructions for a proposed settlement." Chandler cites the California Rules of Court relating to sentencing considerations and argues the initial sentencing choices made by the trial judge must be set aside.
We remanded the matter to allow the trial court to exercise its discretion as to whether to strike the five-year prison term (§ 667(a)), and with directions to correct a clerical error in the abstract of judgment. In all other respects, we affirmed the judgment.
California law prohibits a direct attack upon a conviction in a second appeal after a limited remand for resentencing. Following a limited remand as here, the scope of the issues before the court is determined by the remand order. (People v. Murphy (2001) 88 Cal.App.4th 392, 395.) The issues raised in Chandler's supplemental brief are not properly before this court in his appeal after limited remand.
After discussing the various sentencing rules in relationship to the trial court's initial sentence, Chandler states: "The California Supreme Court has held that sentencing decisions must take into account 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.' [Citations.]" We liberally construe this statement as an indirect challenge to the trial court's decision to not strike the section 667(a) enhancement.
"[A] court's decision to strike a qualifying prior conviction is discretionary. [Citation.] As such, a court's decision not to strike a prior necessarily requires some exercise of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375.) When a defendant challenges the court's refusal to strike an enhancement, "[t]he burden is on the [defendant] to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The record reflects the trial court articulated rational reasons for its decision to not strike the section 667(a) enhancement. We find no abuse of discretion.
Counsel questioned if Chandler is entitled to a recalculation of his custody credits following a remand for a determination whether the trial court would exercise its discretion to strike the section 667(a) enhancement. We find Chandler was not entitled to a recalculation of credits following this court's limited remand.
Counsel cites section 2900.1: "'Where a defendant has served any portion of his sentence under a commitment based upon a judgment which judgment is subsequently declared invalid or which is modified during the term of imprisonment, such time shall be credited upon any subsequent sentence he may receive upon a new commitment for the same criminal act or acts.' [Citation.]" Section 2900.1 is inapt. Here, the judgment was not declared invalid, nor did the court modify the judgment.
Counsel also cites People v. Buckhalter (2001) 26 Cal.4th 20. In Buckhalter, the California Supreme Court held "that when a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served." (Id. at p. 29.) Buckhalter is not persuasive because Chandler was not resentenced.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: IKOLA, J. GOETHALS, J.