Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F0697431 & F05907241-4, James R. Opplinger, Judge.
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Dawson, J.
PROCEEDINGS
On February 23, 2007, the prosecutor filed an information charging appellant, Mark Anthony Rodriguez, with felony possession for sale of a controlled substance (Health & Saf. Code, § 11378, count one), misdemeanor possession of 28.5 grams, or less, of marijuana (§ 11357, subd. (b), count two), giving false information to a peace officer (Pen. Code, § 148.9, subd. (a), count three), and public intoxication (Pen. Code, § 647, subd. (f), count four). The information alleged three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), two prior drug conviction enhancements pursuant to section 11370.2, subdivision (a), and one prior drug conviction enhancement pursuant to section 11370.2, subdivision (b).
Unless otherwise noted, all statutory references are to the Health and Safety Code.
Prior to the commencement of trial on October 1, 2007, the prosecutor made an oral amendment to a first amended information that was apparently presented and filed that day in court. Rodriguez waived a reading of the amended information, pled not guilty to all counts, and denied all special allegations. This document has not been included in the appellate record. From the jury verdict forms, it appears that the first four counts were the same in the two documents. The jury also found Rodriguez guilty of count one of the lesser included offense of simple possession of methamphetamine.
Rodriguez made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 on June 27, 2007 seeking to replace the public defender’s office as his counsel because he had five different attorneys work on his case. Rodriguez wanted the court to appoint private counsel. Although Rodriguez was working, he did not have the funds to hire a private attorney. Rodriguez’s counsel explained appellant was free on bond, had visited counsel in his office, and that counsel had given Rodriguez his direct line phone number. Counsel explained that he and Rodriguez were in disagreement concerning how to handle the case and were having difficulty communicating with each other. The trial court found an irreconcilable breakdown in communications and conflict. The court explained that Rodriguez would not get the attorney of his choice and appointed independent counsel.
Rodriguez filed a motion to exclude evidence of his prior convictions as too prejudicial. The trial court ruled that two sanitized convictions from 1984 and 2001, as well as one conviction in 1999 for battery by an inmate on an officer, could be used for impeachment purposes. The court ordered the exclusion of other convictions.
The parties stipulated that Rodriguez’s true name was Mark Anthony Rodriguez and his birthday was May 30, 1961. The parties stipulated that Rodriguez was legally searched by the police prior to his arrest. The parties also stipulated that officers found 3.49 grams of methamphetamine in one larger bag (a usable amount), five smaller bags containing a total of 1.24 grams of methamphetamine (a usable amount), and 12.5 grams of marijuana (a usable amount).
During their deliberations, the jury asked the court to further define the term “intent” as used in count one. The court responded that the term was to be understood in its ordinary usage. The jury found Rodriguez guilty of counts one, two, and three. It acquitted Rodriguez of count four. In a bifurcated proceeding, the trial court rejected Rodriguez’s objection to having his fingerprints taken as a violation of his Fifth Amendment right against self-incrimination. Rodriguez further objected that the court could not admit the convictions he admitted at trial during the bifurcated hearing on the truth of his prior convictions. The court overruled the objection.
After a hearing in which a fingerprint expert confirmed that Rodriguez’s fingerprints matched those of the person convicted as alleged in the special allegations, the court found true the allegations of Rodriguez’s prior convictions. The court further revoked Rodriguez’s probation in an unrelated action, case No. F05907241-4.
The court received into evidence a packet from the California Department of Corrections showing Rodriguez’s prior prison records.
On November 2, 2007, the court sentenced Rodriguez on count one to the midterm of two years. The court imposed a concurrent term of two years in an unrelated criminal action. The court imposed sentences of three years on each of the prior drug conviction enhancements and dismissed the prior prison term enhancements in the interest of justice. The court imposed a $2,000 restitution fine and granted applicable custody credits.
The abstract of judgment contains typographical errors because the section 11370.2, subdivision (c) enhancements are designated as section 1370.2, subdivision (c) enhancements. Clerical errors that do not accurately reflect the pronouncements of the trial court can be corrected on appeal. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) We will therefore remand this case for the sole purpose of amending the abstract of judgment to reflect the proper statutory designation for the prior drug conviction enhancements.
Rodriguez’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Rodriguez was advised he could file his own brief with this court. By letter on May 28, 2008, we invited Rodriguez to submit additional briefing. To date, he has not done so.
FACTS
Officer Alfred Lopez and Sergeant Steve Castro of the Fresno Police Department were on patrol on September 25, 2006, when they saw Rodriguez standing on the corner of 1750 South Orange in Fresno at 10:50 p.m. Rodriguez was standing next to a sign on the side of a building that said “no loitering.” Rodriguez was alone and about 20 feet from the door of a grocery store.
Lopez exited the patrol car, walked up to Rodriguez, and detected the strong odor of alcohol on Rodriguez. As Lopez spoke to Rodriguez, Lopez noted Rodriguez’s speech was slurred, his eyes bloodshot, and his gait unsteady. When Rodriguez tried to walk away, he stumbled and almost fell. Lopez grabbed Rodriguez by the right shoulder and asked him his name.
The officers did not administer a breath test on Rodriguez.
Lopez told Rodriguez he was not free to leave because he was under the influence. Rodriguez gave his name as Anthony Rodriguez and said his date of birth was April 12, 1960. Lopez asked Rodriguez if he had been arrested before. Rodriguez answered the question negatively. Castro looked up Rodriguez on the computer system and found a picture of Rodriguez with the name Mark Anthony Rodriguez and a date of birth of May 30, 1961. The photograph was of Rodriguez. Lopez confirmed Rodriguez was subject to lawful search and seizure.
Lopez searched Rodriguez, finding a black key case in his pocket. Inside the case, Lopez found a larger baggie containing a crystal substance and five smaller baggies containing a crystal substance. Lopez found plastic bags containing a green leafy substance that appeared to be marijuana, a cell phone, and $230 in currency.
Officer Epifanio Cardenas testified that a “hit” of methamphetamine was .2 to .4 grams and had a value from $20 to $60. Rodriguez had about 30 hits in his possession. Cardenas explained that although it was possible to use a full gram of methamphetamine at once, those that did so usually ended up in the hospital. Cardenas believed the drugs were packaged so they could be sold rapidly.
Tony Maydon was called as a defense witness. Maydon testified that on September 25, 2006, he hosted a barbeque for a Monday night football game at his home. Rodriguez arrived about 5:00 p.m., before the game started. Rodriguez was driving his girlfriend’s car. Maydon had no alcohol out of respect for his brother who was present and is a pastor. Rodriguez ate and drank soda, but had no alcohol.
Rodriguez left for the store around the corner and returned with a fountain drink at 5:30 to 5:45 p.m. Just before the game ended, sometime between 8:30 and 9:00 p.m., Rodriguez left in his girlfriend’s car.
Rodriguez explained that he left the car with his girlfriend and walked down the street to a market on the corner. Rodriguez was working for a temporary employer called Labor Ready. Rodriguez was paid daily and took cash from a machine at his place of employment. Rodriguez had received $60 that day and had $230 in his possession.
Rodriguez called Matthew Ozuna to pick him up. Rodriguez had used methamphetamine before he went to Maydon’s home, but the effects of it were wearing off by the time he reached the market. Rodriguez saw the police car stop at the corner and train a spotlight on him.
Rodriguez explained the officer walked up and asked if he could talk to Rodriguez. Rodriguez replied affirmatively. Rodriguez told the officer he was waiting for a ride. The officer spun Rodriguez around, handcuffed him, and searched his pockets where he found the key holder containing drugs. Ozuna pulled up and talked to the officer. Rodriguez found himself in the back of the patrol car. Rodriguez bought marijuana and methamphetamine for his personal use. On cross-examination, Rodriguez admitted three prior felony convictions.
Sundae Ozuna and her husband received a call from Rodriguez around 10:30 p.m. asking for a ride. They borrowed a car and left to pick up Rodriguez. It took them ten minutes to arrive. As they pulled up, Rodriguez was in handcuffs. They told the officer they were there to pick up Rodriguez.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court for it to amend the clerical error in the abstract of judgment to reflect that the court found true three enhancements pursuant to section 11370.2, subdivision (c). Appellant need not be present. The court shall forward the amended abstract of judgment to the proper authorities.
Comparing the original information to the trial court’s findings regarding the section 11370.2, subdivision (a) allegations, it appears that the prosecution added two more of these allegations to the first amended information. Rodriguez was apparently convicted of two qualifying narcotics offenses in case Nos. 301477-6 and 309943-9, not just one qualifying narcotics offense in each of those cases. It further appears that the first amended information changed the subdivision designations for the section 11370.2 violations to subdivision (c). The trial court found all of the special allegations true. At sentencing, however, the trial court struck two section 11370.2, subdivision (c) allegations, sentencing Rodriguez on only three section 11370.2, subdivision (c) allegations.