Filed 2/8/18 P. v. Westenberger 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

KEVIN MICHAEL WESTENBERGER,

Defendant and Appellant.


F075371

(Super. Ct. No. RF007636A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth G. Pritchard, Judge.
Patricia L. Brisbois, 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 Kevin Michael Westenberger pled no contest to unlawful possession of a firearm (count 1/Pen. Code, § 29800, subd. (a)(1)) and he admitted allegations that he had a prior strike within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm. However, during the review of the record we found certain errors in Westenberger’s abstract of judgment that we will direct the trial court to correct.
FACTUAL AND PROCEDURAL HISTORY
On January 7, 2017, following a traffic stop, police officers arrested Westenberger pursuant to two outstanding misdemeanor arrest warrants. During an ensuing search of Westenberger’s car, officers found a handgun under the driver’s seat and a rifle in the trunk.
On January 10, 2017, the Kern County District Attorney filed a complaint charging Westenberger with two counts of unlawful possession of a firearm (counts 1 & 2), possession of methamphetamine (count 3/Health & Saf. Code, § 11377, subd. (a)), possession of drug paraphernalia (count 4/Health & Saf. Code, § 11364), and driving while his license was suspended (count 5/Veh. Code, § 14601.5). The complaint also alleged that Westenberger had a prior conviction within the meaning of the Three Strikes law.
On January 17, 2017, Westenberger entered his plea as noted above, with a Cruz waiver, on the condition that the remaining counts were dismissed. The waiver provided that if Westenberger returned for sentencing and did not violate certain specified conditions, the court would strike the prior strike conviction if there was “nothing new or surprising” in his record and sentence Westenberger to the middle term of two years. However, if he did not return for sentencing or violated any of the specified conditions, the court could sentence Westenberger up to a maximum term of six years. After Westenberger entered his plea, the court dismissed the remaining counts conditioned on the plea agreement remaining in effect. Westenberger was released from custody that day.
On January 24, 2017, a police officer arrested Westenberger after observing him leave a house that had been red tagged by a building code inspector as being unsafe for human occupancy. During a search of Westenberger, the officer found a plastic baggie containing suspected methamphetamine and a glass pipe in one of his pants pockets.
On March 2, 2017, the court held a hearing to determine whether Westenberger violated the conditions of his Cruz waiver. However, it continued the hearing at defense counsel’s request.
On March 3, 2017, defense counsel filed a motion to suppress evidence seized during Westenberger’s January 24, 2017, arrest.
On March 8, 2017, defense counsel filed a motion to withdraw plea on Westenberger’s behalf. In an attached declaration, Westenberger asserted that he entered his plea under duress and on the mistaken assumption that he was going to receive a suspended two-year prison term.
On March 16, 2017, at the continued Cruz waiver hearing, the court denied Westenberger’s suppression motion and it found that he violated the terms of the waiver that required him to obey all laws.
On March 21, 2017, the court denied Westenberger’s motions to withdraw plea and to strike his prior strike conviction and it sentenced him to prison for a doubled, upper term of six years.
On March 22, 2017, defense counsel filed a timely appeal on Westenberger’s behalf. However, he did not obtain a certificate of probable cause.
Westenberger’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Westenberger has not responded to this court’s invitation to submit additional briefing.
Following an independent review of the record, we find no reasonably arguable factual or legal issues exist.
However, our review of the record disclosed that Westenberger’s abstract of judgment contains several errors. In section 1, instead of indicating that Westenberger was sentenced to a doubled, upper term of six years, the abstract indicates he was sentenced to the upper term of three years. In section 3, the abstract erroneously indicates that the court imposed a three-year enhancement pursuant to section 667, subdivision (e). Additionally, the abstract fails to indicate in section 4 that Westenberger was sentenced pursuant to section 667, subdivisions (b) through (i) and that he was sentenced to prison pursuant to section 1170, subdivision (h)(3). Therefore, we will direct the trial court to issue an amended abstract of judgment that corrects these errors.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment that corrects the errors in the immediately preceding paragraph and to serve a certified copy to the appropriate authorities. In all other respects, the judgment is affirmed.