Opinion
E060309
06-05-2014
THE PEOPLE, Plaintiff and Respondent, v. BIRL MCKINNIE, JR., Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. RIF139217)
OPINION
APPEAL from the Superior Court of Riverside County. Dale R. Wells, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Birl McKinnie, Jr., guilty of assault with a firearm (Pen. Code, § 245, subd. (a)(2), count 1), negligent discharge of a firearm (§ 246.3, count 2), being a felon in possession of a firearm (former § 12021, subd. (a)(1), count 3), and being a felon in possession of ammunition (former § 12316, subd. (b)(1), count 4). Defendant admitted that he had one prior serious felony conviction (§ 667, subd. (a)) and one prior strike conviction (§§ 667, subds. (c) & (e)(1) & 1170.12, subd. (c)(1)). In 2009, the trial court sentenced him to a total term of 15 years in state prison.
All further statutory references will be to the Penal Code, unless otherwise noted.
On March 27, 2013, this court granted defendant's request to take judicial notice of the appellate record in case no. E048212. The procedural background is taken from this court's opinion in that case. (See People v. McKinnie (June 23, 2010, E048212) [nonpub. opn.].)
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On October 25, 2013, the Legal Processing Unit, Division of Adult Institutions, of the Department of Corrections and Rehabilitation, sent a letter to the sentencing judge indicating a potential error. The letter noted that, on count 2 (§ 246.3) and count 3 (former § 12021, subd. (a)(1)), the court imposed a term of one-third the middle term, or eight months, and ordered the terms to run concurrent. The letter requested clarification, pointing out that "imposition of one-third the middle base term is only applicable when sentencing consecutively." On November 22, 2013, the court held a hearing on the matter, conferred with counsel, and vacated its previous sentences on counts 2 and 3. Then, on both of those counts, the court imposed the midterm of two years, doubled pursuant to the prior strike, and ordered them to run concurrent. The 15-year total term remained as originally imposed.
Defendant filed a timely appeal. We affirm.
PROCEDURAL BACKGROUND
On March 5, 2009, defendant was convicted of assault with a firearm (§ 245, subd. (a)(2)), negligent discharge of a firearm (§ 246.3), being a felon in possession of a firearm (former § 12021, subd. (a)(1)), and being a felon in possession of ammunition (former § 12316, subd. (b)(1)).
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues: 1) whether the trial court properly imposed sentence on counts 2 and 3 following the request by the Department of Corrections and Rehabilitation; 2) whether defendant had a right to be present at the resentencing hearing; and 3) whether his absence was prejudicial error. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: RICHLI
J.
KING
J.