Filed 8/22/18 P. v. Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
DANIEL JOSEPH GARCIA,
Defendant and Appellant.
|
F076162
(Super. Ct. No. BF165788A)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David D. Minier, Judge. (Retired Judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appellant Daniel Joseph Garcia stands convicted pursuant to a plea of no contest to three counts of making criminal threats (Pen. Code,[1] § 422, subd. (a)).[2] Appellant timely appealed following the lift of stay on a previously imposed sentence. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asking this court to review the record to determine whether there are any arguable issues on appeal. Appellant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Appellant filed a supplemental letter brief, but did not raise any appealable issues.[3] Finding no arguable error that would result in a disposition more favorable to appellant, we affirm the trial court’s findings and orders. We shall, however, order a corrected abstract of judgment to correct a clerical error.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On September 29, 2016, officers responded to a tattoo business regarding a disturbance. Upon their arrival, the officers were informed that appellant entered the tattoo shop asking about a tattoo. An argument ensued and appellant threatened to kill the owner and two employees, who were inside the tattoo business. The officers contacted appellant, who was standing nearby. A search of his person revealed one spent round of shotgun ammunition. Appellant was placed under arrest without incident.
On October 28, 2016, appellant initially pleaded not guilty to the charges.
On November 29, 2016, the trial court granted appellant’s motion to dismiss counts 2 and 3.
On December 9, 2016, pursuant to a plea agreement, the trial court granted appellant’s Romero[4] motion, striking the prior strike conviction. The dismissed counts were realleged. (§ 422, subd. (a)/counts 4 & 5.) Appellant admitted he previously was convicted of a strike prior and that he served three prior separate prison terms.
On January 5, 2017, the court denied probation and sentenced appellant to an aggregate term of six years in state prison: the upper term of three years on counts 1 and 3 consecutive one-year terms pursuant to section 667.5, subdivision (b). The court then imposed concurrent three-year terms on counts 4 and 5. The court suspended execution of appellant’s sentence and placed appellant on probation for a period of three years. The terms and conditions of probation included serving the first year of his probationary period in the Kern County Jail, to report in person to the probation officer within five days of release from custody, to report to the probation officer every month, to provide the probation officer with his current address, employment, income and expenses and to not violate the law. The court also imposed several fines and fees.
On March 30, 2017, the Kern County Probation Department filed a declaration requesting appellant’s probation be revoked and a bench warrant be issued. The declaration stated that appellant had violated the terms and conditions of probation in that he failed to report to probation within five days of sentencing, failed to provide a current address, and committed new law violations in that he was arrested for public intoxication and resisting arrest (§§ 647, subd. (f) & 148, subd. (a)).
On August 3, 2017, the trial court found appellant violated probation by failing to obey all laws and by failing to provide his current address to the probation department. The trial court imposed the six-year prison sentence, imposed the previously imposed and suspended fines and fees, and imposed and suspended a new restitution fine pursuant to section 1202.45. The court awarded 238 days credit for time served, plus 238 days good and work time credit.
Appellant filed a timely notice of appeal on August 16, 2017.
DISCUSSION
The abstract of judgment contains a clerical error that must be corrected. The minute order of August 3, 2017, reflects that the court revoked probation and imposed the following sentence: as to count 1, the upper term of three years, plus three consecutive one-year terms pursuant to section 667.5, subdivision (b); as to count 4, the upper term of three years, to be served concurrent with count 1; and as to count 5, the upper term of three years, to be served concurrent with count 1, along with various fines and fees.
The abstract of judgment, however, does not reflect the sentence or fees imposed as to counts 4 and 5. Accordingly, the abstract of judgment must be corrected.
DISPOSITION
The Clerk of the Superior Court of Kern County is directed to correct the abstract of judgment to reflect the sentence, fines and fees imposed as to counts 4 and 5, and thereafter forward a certified copy of the corrected abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.
* Before Franson, Acting P.J., Smith, J. and Meehan, J.
[1] All statutory references are to the Penal Code.
[2] Section 422, subdivision (a) provides:
“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
[3] Appellant asserts, without support, that the new violation never occurred.
