Filed 9/27/17 P. v. Marshall 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
v.
CLOYD LEE MARSHALL, JR.,
Defendant and Appellant.
|
E066208
(Super.Ct.No. FSB1600105)
OPINION
|
APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed with directions.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Cloyd Lee Marshall, Jr., is serving eight years in prison after pleading guilty to human trafficking. He asks this court to remand the matter to the trial court so it can dismiss the remaining charges and allegations pursuant to the plea agreement. The People concede, and we agree. The matter is remanded to the trial court with directions to dismiss counts 1, 3, 4, and 5 of the information and both allegations.
Statement of the Case
On April 7, 2016, the People filed an information charging defendant in count 1 with human trafficking of a minor for a sex act by force (Pen. Code, § 236.1, subd. (c)(2)); in count 2 with human trafficking of a minor for a sex act (§ 236.1, subd. (c)(1)); in count 3 with possessing child pornography (§ 311.11, subd. (a)); in count 4 with pimping a minor 16 years of age or older (§266h, subd. (b)(1)); and in count 5 with pandering by procuring a minor over age 16 (§ 266i, subd. (b)(1)). The People further alleged as to count 1 that defendant committed the crime through the use of force, fear or fraud (§ 236.1, subd. (c)(2)), and as to all counts that defendant had a prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)).
On May 13, 2016, defendant pled no contest to count 2. In exchange, defendant was to receive an eight-year sentence and the remaining charges and allegations would be dismissed. After taking defendant’s plea, the trial court asked the People: “Is there a motion to dismiss any other remaining counts and allegations pursuant to the terms of the plea?” The prosecutor responded that the People would make the motion at the sentencing hearing.
The sentencing hearing was held on May 20, 2016. The court sentenced defendant as agreed to eight years in prison. The People did not make a motion to dismiss, and the reporter’s transcript does not show that the court dismissed the remaining counts and allegations. However, the minute order for that date indicates the counts and allegations were dismissed.
Defendant appealed.
Discussion
Defendant argues, the People concede,[1] and this court agrees, that the matter must be remanded to the trial court so it can dismiss counts 1, 3, 4, and 5, along with the two allegations contained in the information, in accordance with the plea agreement. (People v. Campbell (1994) 21 Cal.App.4th 825, 834-835)
Disposition
The matter is remanded to the trial court with directions to dismiss counts 1, 3, 4, and 5 of the information and both allegations, as provided for in the plea agreement. In all other respects, the judgment of conviction and the sentence are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
SLOUGH
J.
FIELDS
J.
[1] The People point out that defendant does not appear to have attempted to correct this issue by first notifying the trial court, which would have made this appeal unnecessary.
