Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. LA027034, Barry Taylor, Judge. Affirmed.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
EPSTEIN, P. J.
Steven Hypolite filed an appeal following the trial court’s modification of the abstract of judgment pursuant to an order of this court in case number B118991. In an opinion by this court filed on November 27, 2000, the clerk of the superior court was ordered to prepare a modified abstract of judgment striking the finding of great bodily injury under Penal Code section 12022.8 and ensuing five-year enhancement and substituting in its place a great bodily injury finding under Penal Code section 12022.7 and a three-year enhancement which was to be stayed.
Pursuant to appellant’s request, this court has taken judicial notice of the record in Court of Appeal case number B118991, entitled People v. Steven Hypolite. Appellant was charged with three counts of committing a lewd act upon a child under the age of 14, with the sentencing enhancement that he inflicted great bodily injury upon the child by infecting her with herpes. Appellant was convicted of one count and the finding of great bodily injury as to that count was found true. Appellant was acquitted of a second count and the jury deadlocked on a third count. After sentencing, the prosecution dismissed the third count.
FACTUAL AND PROCEDURAL SUMMARY
On April 13, 2006, appellant filed an ex parte motion for transportation to hearing set for April 20, 2006. Said motion was denied on October 17, 2006.
On August 29, 2006, appellant filed a motion for appointment of counsel, which was denied October 17, 2006.
On September 11, 2006, appellant filed a request for judicial notice of points and authorities in support of his claim that he was entitled to be present for the modification. The request was denied on October 17, 2006.
On October 16, 2006, pursuant to order of this Court the trial court modified appellant’s sentence to delete the enhancement pursuant to Penal Code section 12022.8 and substitute in its place an enhancement pursuant to Penal Code section 12022.7, which was ordered stayed. The judgment clerk was ordered to forward an amended abstract of judgment to the Department of Corrections.
On November 7, 2006, the trial court denied appellant’s request to be personally present for sentencing as there was no increase in time to be served; rather there was a reduction.
On December 4, 2006, appellant filed a motion to compel production of his genital swabs test results and a motion to exercise rights to allocution and to finalize the judgment, which were denied December 7, 2006.
On December 6, 2006, appellant filed a “contingent” notice of appeal.
On January 25, 2007, appellant filed a second notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On August 29, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On October 1, 2007, he filed a supplemental brief arguing the modification of his sentence without his presence and without representation requires reversal. He additionally claimed his conviction and sentence were procured by prosecutorial misconduct, suppression of material evidence, false material evidence and ineffective assistance of trial counsel. Further, he claimed destruction of his genital swabs violated his due process rights and that his sentence was unauthorized in that the finding of great bodily injury was not supported by the evidence. He also asserted the finding that he was ineligible for probation violated his sixth amendment right to a jury trial pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466, 490.
We have examined the entire record and are satisfied that no arguable issues exist. While appellant was not present when the trial court modified his sentence, appellant has failed to demonstrate how upon this limited remand he was prejudiced as a result. (See People v. Hines (1997) 15 Cal.4th 997, 1038-1039; People v. Hovey (1988) 44 Cal.3d 543, 585.) Additionally, appellant was ineligible for probation pursuant to former Penal Code section 667.61, subdivision (c)(7) (added by Stats. 1994, c. 447) and former Penal Code section 1203.066, subdivision (c) (added by Stats. 1981, c. 1064, § 4) by reason of the jury’s verdict and there was no violation of principles established in Apprendi v. New Jersey, supra, 530 U.S. 466. Appellant’s remaining claims cannot be sustained in that this court specifically affirmed appellant’s conviction in his prior appeal and remanded only for a limited modification of sentence. Appellant cannot now directly attack his conviction. (People v. Webb (1986) 186 Cal.App.3d 401, 410.) Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.