Filed 7/22/14 P. v. Perryman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060042
v. (Super.Ct.No. FSB1205062)
AL LUPE PERRYMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti,
Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Pursuant to a negotiated plea agreement, defendant and appellant Al Lupe
Perryman pled no contest to attempted robbery (Pen. Code, §§ 664/211).1 He also
1 All future statutory references are to the Penal Code unless otherwise stated.
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admitted to committing the crime for the benefit and in association with a criminal street
gang (§ 186.22, subd. (b)(1)(B)) and having previously suffered a serious felony (§ 667,
subd. (a)(1)). In return, the remaining charges and enhancement allegations were
dismissed and defendant was sentenced to a stipulated term of 12 years in state prison
with credit for time served. Defendant appeals from the judgment, challenging the
sentence or other matters occurring after the plea as well as other basis. We find no error
and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND2
On September 26, 2012, defendant entered a sandwich restaurant and ordered a
sandwich. He then displayed a small handgun, pointed it over the counter in the direction
of the employee who was making the sandwich, and stated, “‘Do me a favor, open the
register.’” The employee turned and ran out the rear door of the store. The employee
then called the police from the business next door. The employee identified defendant as
the suspect from a photographic lineup.
Defendant was apprehended, and on November 13, 2012, a two-count felony
complaint was filed against defendant. The complaint alleged that defendant committed
an attempted second degree robbery (§§ 664/211; count 1) and street terrorism (§ 186.22,
subd. (a); count 2). The complaint further alleged that as to count 1, defendant personally
used a firearm within the meaning of section 12022.53, subdivision (b). The complaint
2 The factual background is taken from the San Bernardino police report.
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also alleged that defendant had suffered a prior serious felony (§ 667, subd. (a)(1)) and a
prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subd. (a)-(d)).
On September 19, 2013, the trial court granted the People’s motion to amend the
complaint by interlineations to add a gang enhancement pursuant to section 186.22,
subdivision (b)(1)(B), as to count 1. Thereafter, on that same day, defendant entered into
a negotiated plea. Defendant pled no contest to attempted robbery (§ 664/211); and
admitted the gang enhancement (§ 186.22, subd. (b)(1)(B)) attached to count 1. He also
admitted to having previously suffered a serious felony (§ 667, subd. (a)(1)). In return,
the remaining charges and enhancement allegations would be dismissed and defendant
would be sentenced to a stipulated term of 12 years in state prison with credit of 672
(336 actual days plus 336 conduct credits) days for time served. After examining
defendant, the trial court found that defendant knowingly, intelligently, freely, and
voluntarily waived his rights; that defendant read and understood the plea form, the
nature of the charges, and the consequences of the plea; that the plea was entered into
freely, voluntarily, knowingly, and intelligently; and that there was a factual basis for his
plea. Defendant was thereafter immediately sentenced in accordance with his plea
agreement and awarded a total of 672 days credit for time served. The court’s minute
order and the abstract of judgment note conduct credits pursuant to section 4019.
On November 6, 2013, defendant filed a notice of appeal, challenging the sentence
or other matters occurring after the plea as well as other basis. He also concurrently filed
a request for certificate of probable cause explaining that he had “signed a deal for 12
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years with half time under the ‘new 4019,’” but because he had been validated as a gang
member pursuant to section 2933.6,3 the Department of Corrections and Rehabilitation
found him ineligible to receive good time credits and “must serve 100 percent of [his]
term.” Defendant therefore requested “remodification” of his sentence down to six years.
The defendant had also attached to his request a Declaration in Support of Request to
Recall Sentence pursuant to section 1170, subdivision (d), based on the same grounds.
Defendant’s request for a certificate of probable cause was denied by the court on
November 7, 2013.4
II
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
3 Effective January 25, 2010, section 2933.6, subdivision (a), regarding sentence
reduction conduct credits, was amended to read: “Notwithstanding any other law, a
person who is placed in a Security Housing Unit . . . upon validation as a prison gang
member or associate is ineligible to earn [sentence reduction conduct] credits pursuant to
Section 2933 or 2933.05 during the time he or she is in the Security Housing Unit, . . .”
(§ 2933.6, subd. (a), as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 44,
italics added; see In re Sampson (2011) 197 Cal.App.4th 1234, 1240 [prospective
application of amendment does not violate prohibition against ex post facto laws]; In re
Efstathiou (2011) 200 Cal.App.4th 725, 731-734 [prospective application of amendment
does not violate procedural due process].)
4 The court did not expressly deny his petition to recall his sentence, but
implicitly denied the petition since it was submitted together with his request for a
certificate of probable cause based on the same grounds.
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the case, a summary of the facts and potential arguable issues, and requesting this court
conduct an independent review of the record. We offered defendant an opportunity to
file a personal supplemental brief, and he has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the entire record for potential error and find no arguable error
that would result in a disposition more favorable to defendant.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
McKINSTER
J.
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