Filed 8/29/17 P. v. Smith CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Siskiyou)
‑‑‑‑
| THE PEOPLE,
Plaintiff and Respondent,
v.
COREY JACOB SMITH,
Defendant and Appellant.
| C082420
(Super. Ct. Nos. MCYKCRRS 14‑1623, MCYKCRF 14‑1790, SCCR‑CRF 2016‑508)
|
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436. We briefly recount the facts and procedural history in accordance with People v. Kelly (2006) 40 Cal.4th 106, 110, 124.
In 2013, defendant Corey Jacob Smith was sentenced to state prison for a violation of Penal Code section 290.010.[1] On May 31, 2014, he was released on postrelease community supervision (PRCS). In case No. MCYKCRRS 14‑1623 (hereafter, case No. 1623), a petition for revocation of PRCS filed December 1, 2014, alleged that defendant had not lived at his reported address since August 14, 2014. On June 12 and June 17, 2014, defendant had submitted positive drug tests for methamphetamine.
In case No. MCYKCRF 14‑1790 (hereafter, case No. 1790), defendant entered a plea of no contest to failing to file a required change of address (§ 290.013, subd. (b)) and admitted a strike prior (1999 rape of an intoxicated person) (§§ 667, subds. (b)‑(i), 1170.12) and two prior prison term allegations (§ 667.5, subd. (b)). In case No. 1623, he admitted an added allegation that he had possessed methamphetamine on or about August 5, 2014.
On April 23, 2015, in case No. 1790, the court imposed an eight‑year sentence (upper term of three years, doubled for the strike prior, plus two years for the prior prison terms), suspended execution, and granted probation for a term of five years subject to certain terms and conditions including 365 days in jail with early release to participate in residential treatment. The court awarded 257 days (129 actual and 128 conduct) of presentence custody credit. In case No. 1623, the court ordered defendant to serve 180 days in jail concurrent to the 365 days ordered as a condition of probation in case No. 1790.
On May 20, 2015, defendant submitted a positive drug test for methamphetamine. On May 25, 2015, defendant entered a residential treatment program but left on June 4, 2015. Defendant failed to report to the probation officer after June 2, 2015. His whereabouts were unknown until March 29, 2016, when he was arrested for violation of probation and PRCS.
On March 30, 2016, a petition filed in case No. 1790 to revoke probation and a petition filed in case No. 1623 to revoke PRCS alleged that defendant had been absent from his residence since June 4, 2015, had tested positive for methamphetamine on May 20, 2015, and had failed to report to his probation officer.
On April 27, 2016, in case No. SCCR‑CRF 2016‑508 (hereafter, case No. 508), defendant was charged with failing to file a required change of address. (§ 290.013, subd. (b).) It was further alleged that defendant had a strike prior (§§ 667, subds. (b)‑(i), 1170.12) and two prior prison terms (§ 667.5, subd. (b)). Defendant entered a plea of guilty to the charge and admitted all three enhancement allegations.[2] Defendant also admitted the allegations to revoke probation in case No. 1790 and to revoke PRCS in case No. 1623.
On June 28, 2016, the court lifted the stay of execution of the eight‑year sentence in case No. 1790 and imposed a consecutive 16‑month sentence in case No. 508.[3] In case No. 1623, PRCS supervision was terminated. The court imposed various fees and fines including a restitution fine (case No. 1790—previously imposed $2,400; case No. 508—$300) and a parole revocation restitution fine in the same amounts. The court awarded presentence custody credit of 265 days (133 actual, 132 conduct) in case No. 1790 and 181 days (91 actual, 90 conduct) in case No. 508.
Defendant appeals in all three cases.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
As noted in footnote 3, ante, the two prison priors which defendant orally admitted in case No. 508 are dismissed.[4] There is no need to amend the abstract of judgment as it does not reference these two prison priors. Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to dismiss the two prior prison terms (§ 667.5, subd. (b)) admitted in case No. SCCR‑CRF 2016‑508. As modified, the judgment is affirmed.
BUTZ , J.
We concur:
ROBIE , Acting P. J.
DUARTE , J.
[1] Undesignated statutory references are to the Penal Code.
[2] On his written plea form, defendant did not admit the two prior prison term enhancements but admitted the strike prior and orally admitted all three (prior strike and two prior prison terms) at the entry of plea hearing. Defense counsel stated that in entering his plea and admission to the three enhancements alleged, defendant was “pleading to the sheet, open plea.” Defense counsel further stated that defendant recognized he faced an additional consecutive term of 16 months, one‑third the midterm or eight months, doubled. This sentence calculation did not include a term for the two prison priors.
[3] In case No. 508, the trial court did not strike or impose sentence on the two prior prison term allegations, which as we have noted defendant admitted orally but did not admit in writing on the plea form. The plea agreement did not include time for the prior prison terms. Thus, it appears the trial court erred in asking defendant for his admission to the two prison priors and they should have been stricken at sentencing. We will dismiss the two prison priors in case No. 508.
[4] In the interest of judicial economy, we have resolved this issue without first requesting supplemental briefing. Any party claiming to be aggrieved may petition for rehearing. (Gov. Code, § 68081.)
