THE PEOPLE v. Darius Clifford Lacey, Defendant and Appellant.

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. Darius Clifford Lacey, Defendant and Appellant.

B226694

Decided: March 28, 2011

Kevin Michele Finkelstein, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Darius Clifford Lacey appeals from the judgment entered following his plea of no contest to petty theft with priors (Pen.Code, § 666).1  The trial court sentenced Lacey to 16 months in prison.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.2

On May 8, 2010, Bryant Howard was working as a loss prevention officer at a Rite-Aid store not far from the intersection of Central Avenue and 139th Street.   At approximately 2:45 that afternoon, Howard saw appellant, Darius Clifford Lacey, enter the store.   Howard followed Lacey as he walked through the store and observed Lacey place a black cell phone case, lip gloss and hairspray into his left rear pocket.   Howard then followed Lacey as he left the store through the front door without paying for the merchandise.

Howard confronted Lacey just outside the front entrance to the store.   He identified himself and asked Lacey to return the items he had taken.   Lacey handed to Howard the cell phone case and the lip gloss.   However, when Howard asked Lacey for the hairspray, Lacey stated, “ ‘That's everything,’ “ then began to run down the street.   Howard followed Lacey until Lacey began to get tired and stopped in the middle of the intersection at Central Avenue and 139th Street.   Howard caught up with Lacey there and he ordered Lacey to give to him the hairspray he had taken from the store.   Lacey “took a fighting stance with clenched fist[s]” and, believing that Lacey was about to hit him, Howard grabbed Lacey's belt and pulled his body closer to his own.   Howard believed that “if he pulled Lac[e]y closer to him, he would minimize Lacey's” ability to hit him.   Lacey tried to push Howard away, but was unable to do so.   As the two men were “wrestling with each other in the middle of the intersection,” Los Angeles Sheriff's deputies pulled up.   Both men were detained.   However, after the deputies determined that Lacey was the individual who had taken merchandise from the Rite-Aid store and that Howard was a loss prevention officer there, Howard was released and Lacey was taken into custody.

2. Procedural history.

A complaint executed on May 11, 2010 alleged in count 1 that Lacey committed second degree robbery in violation of section 211, a felony, when he “unlawfully, and by means of force and fear [took] personal property from the person, possession, and immediate presence of Rite-Aid.”   It was further alleged that the robbery was “a violent felony within the meaning of ․ [section] 667.5[, subdivision] (c)” and a “serious felony within the meaning of ․ section 1192.7[, subdivision] (c).”  In count 2, it was alleged that Lacey committed the crime of petty theft with priors in violation of section 666, a felony, when he “unlawfully and in violation of ․ [s]ection 484 [, subdivision] (a), [did] steal[,] take and carry away the personal property of Rite-Aid.”   It was further alleged as to count 2 that on April 10, 2004, in Los Angeles Superior Court, Lacey had been convicted of grand theft in violation of section 487, subdivision (a) and that he served a prison term for the offense.   Finally, it was alleged as to counts 1 and 2 that Lacey, within the meaning of section 667.5, had been convicted of and had served prison terms for possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a), the possession or purchase for sale of a designated controlled substance in violation of Health and Safety Code section 11351, and the sale or furnishing of a substance falsely represented to be a controlled substance in violation of Health and Safety Code section 11355.

A public defender was appointed to represent Lacey, who waived arraignment, a reading of the complaint and a statement of his constitutional and statutory rights.   Lacey chose to simply enter pleas of not guilty to the crimes charged in counts 1 and 2 and to deny the remaining allegations.

At proceedings held on May 26, 2010, Lacey indicated that he wished to plead no contest to count 2 “for the low term of 16 months” in state prison.   The following colloquy then occurred:  “The court:  All right.  [¶] You have the right to a jury trial, the right to remain silent, the right to use the subpoena power of the court, the right to confront and cross-examine witnesses.  [¶] Do you understand your rights?  [¶] [Lacey]:  Yes, I do.  [¶] The court:  Do you give them up?  [¶] [Lacey]:  Yes. [¶] The court:  If you're on probation or parole right now, this'll violate any probation or parole.  [¶] Do you understand?  [¶] [Lacey]:  Yes. [¶] ․ [¶] ․ Will it run concurrent?  [¶] The court:  Yes, it will run concurrent with any parole violation as a matter of law.  [¶] Okay? [¶] And when you get out of prison, you're going to be on parole.  [¶] If you violate, you can go back to state prison for up to one year for each violation.  [¶] And the maximum possible punishment for this charge is three years.  [¶] Do you understand?  [¶] [Lacey]:  Yes, Sir;  but if I go, will I ․ start my parole all over again?   [¶] The court:  Yes. You're going to be on a new grant of parole when you get out on this new case.   Yes. [¶] So do you still want to take the deal or not?   [¶] [Lacey]:  Yeah. I have to.   Yeah.” Lacey then pled no contest to count 2, petty theft with priors in violation of section 666.

Lacey was sentenced on June 25, 2010.   The trial court imposed the agreed-upon term of 16 months in state prison and awarded Lacey presentence custody credit for 49 days actually served and 49 days of good time/work time, or 98 days.   The court ordered Lacey to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov.Code, § 70373) and a $20 DNA fee (Gov.Code, § 76104.7).   The trial court then dismissed all remaining counts and allegations.

Lacey filed a timely notice of appeal on August 3, 2010.   He did not seek a certificate of probable cause.

This court appointed counsel to represent Lacey on appeal on October 21, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed January 25, 2011, the clerk of this court advised Lacey to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The facts have been taken from the probation report..  FN2. The facts have been taken from the probation report.

CROSKEY, J. KITCHING, J.