Opinion
C057097
9-19-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA EMANUEL DEVONNE YOUNG, Defendant and Appellant.
Not to be Published
On February 8, 2006, defendant Joshua Emanuel Devonne Young and two cohorts attacked Thomas Birge. Birge left his job at a pizza restaurant on his bicycle, carrying a pizza box. One of the assailants pushed a shopping cart into Birge, who lost his balance and got off his bicycle. Defendant and his two cohorts then hit Birge in the head and face with closed fists until he fell to the ground. They then kicked Birge, demanding his wallet and money. Birge had neither. One of assailants wore a mask, one claimed he had a gun (although Birge never saw it), and the other stood back. Birge suffered several lacerations—a large laceration over his right eye down the right side of his nose, another on the left side of his head, and a third, which required stitches, on the back of his head.
Defendant pleaded no contest to attempted second degree robbery (Pen. Code, §§ 211/213, subd. (b)) and admitted that he personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)) in exchange for dismissal of the remaining count and allegation (assault by means of force likely to produce great bodily injury and personal infliction of great bodily injury enhancement).
Hereafter, undesignated section references are to the Penal Code.
The court suspended imposition of sentence. Finding unusual circumstances, that is, defendant was young with no significant history of criminal activity, the court granted probation for a term of three years subject to certain terms and conditions, including that he serve a 90-day jail term with a waiver of presentence custody credits; that he pay victim restitution of $745.64 jointly and severally with Shelton Wardsworth; that he abstain from the use of drugs; and that he report to probation.
The third assailant was a minor.
Defendant admitted that he violated probation in that he submitted urine tests that were positive for marijuana. The court revoked probation.
The court sentenced defendant to state prison for an aggregate term of five years, that is, the midterm of two years for attempted second degree robbery plus three years for the great bodily injury enhancement.
Defendant appeals. His request for a certificate of probable cause (§ 1237.5) was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
We note an error in the amended abstract of judgment filed February 5, 2008. For attempted second degree robbery, the amended abstract cites sections "664/211." However, attempted second degree robbery is not punishable pursuant to section 664. Attempted second degree robbery is punishable pursuant to section 213, subdivision (b), which provides a sentencing triad of 16 months, two years or three years. Section 213, subdivision (b) provides: "Notwithstanding Section 664, attempted robbery in violation of paragraph (2) of subdivision (a) [second degree] is punishable by imprisonment in state prison." The trial court chose the midterm of two years. Only the abstract is in error. We will order the abstract of judgment corrected accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment, deleting the reference in section 1 to Penal Code section 664 and replacing it with section 213, subdivision (b), to read as corrected "211/213, subd. (b)," and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation. The judgment is affirmed.
We concur:
NICHOLSON, J.
HULL, J.