Filed 1/29/18 P. v. Stephens CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

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Appointed counsel for defendant Dennis Lee Stephens filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we have found no arguable error that would result in a disposition more favorable to defendant. We have, however, found errors in the abstract of judgment that require correction. We order the abstract corrected and affirm the judgment.

I. BACKGROUND

We provide the following brief description of the factual and procedural background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A. Case No. MCYKCRF201117312 (Case No. 17312)[1]

In 2012, defendant pleaded no contest to assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1))[2] and admitted the enhancement allegations that he personally caused great bodily injury (§ 12022.7, subd. (a)), and committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant pleaded no contest to failure to appear while released on bail (§ 1320.5), conspiracy to commit assault for the benefit of a gang (§ 182, subd. (a)(1)), fleeing an officer (Veh. Code, § 2800.2), three counts of possession of controlled substances for sale, admitted a prior drug conviction enhancement (Health & Saf. Code, §§ 11351, 11359, 11378, 11370.2), and pleaded no contest to five misdemeanors. The trial court dismissed the remaining counts. In accordance with the plea agreement, the trial court sentenced defendant to an aggregate term of 17 years in prison, suspended execution of sentence for seven years, and placed defendant on probation. The trial court also imposed various fines and fees.

In September 2016, the probation department filed a petition for revocation of probation, alleging defendant had violated his probation by committing multiple new offenses, as charged in case No. SCCRCRBF201612971 (case No. 12971). Defendant admitted violating probation. The trial court ordered the 17-year sentence previously imposed executed. The trial court also awarded defendant 212 days of presentence custody credits, and lifted the stay on the fines which had been previously stayed pending successful completion of probation.

B. Case No. 12971

In September 2016, law enforcement officers conducted a probation search of defendant’s home and vehicles. In the course of the search, they found a loaded nine-millimeter Beretta and several garbage bags of marijuana and other indicia of sales. Defendant pleaded guilty to unlawful possession of a firearm and ammunition (§§ 29800, subd. (a)(1), 30305, subd. (a)(1)) and possession of marijuana for sale (Health & Saf. Code, § 11359). Defendant also admitted he had two prior strike convictions and had served two prior prison terms (§§ 667.5, subd. (b), 1170.12). In accordance with the plea, the trial court imposed an aggregate term of nine years four months in prison, concurrent with the sentence in case No. 17312. The trial court also ordered defendant to pay a restitution fine of $5,400 (§ 1202.4), imposed and stayed an identical parole revocation fine (§ 1202.45), ordered defendant to pay a $150 drug program fee (Gov. Code, § 11372.7), an $80 court security fee (§ 1465.8, subd. (a)), and a $60 criminal conviction assessment (Gov. Code, § 70373).

Defendant did not obtain a certificate of probable cause. (§ 1237.5.)

II. DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. We have, however, noticed errors in the abstract which require correction. Based on an August 24, 2017, letter the trial court received from the California Department of Corrections, the trial court made a number of corrections to the abstract of judgment. It appears in doing so, it erroneously added the two 1-year enhancements under section 667.5, subdivision (b) to case No. 17312 and deleted them from case No. 12971. The oral pronouncement of judgment for each case does not support this. “Rendition of the judgment is normally an oral pronouncement, and the abstract of judgment cannot add to, or modify, the judgment, but only purports to digest and summarize it.” (People v. Zackery (2007) 147 Cal.App.4th 380, 389.) We will order the clerk to correct the abstract of judgment to reflect the oral pronouncement of judgment, deleting the imposition of the two 1-year enhancements under section 667.5, subdivision (b) in case No. 17312, imposing them in case No. 12971, and correcting the aggregate term in case No. 12971 back to nine years four months.

III. DISPOSITION

The judgment is affirmed. The clerk is ordered to correct the abstract of judgment in accordance with this opinion and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

DUARTE, J.