Opinion
B301859
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. LOVINE BRIGGS, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. SA062554) THE COURT:
Appellant and defendant Lovine Briggs (defendant) appeals from the denial of his motion for resentencing. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. After defendant was notified of his counsel's brief he filed his own brief, asserting that the trial court erred in denying his motion to recall his sentence and that the amended abstract of judgment issued October 18, 2019, did not accurately reflect the presentence custody credits awarded. We have reviewed the entire record, and finding no arguable issues, affirm the trial court's order.
On September 12, 2019, defendant filed "Motion to be resentenced pursuant to Penal Code § 1237.1 and further sentencing consideration based on changes in the law which modified Penal Code[] § 1385(b), § 667(a), and § 12022.53(h)," which alleged that defendant was charged in 2006 with several felonies related to an alleged home invasion robbery. In his second trial he was convicted of two of the charges and several enhancements were found true. In December 2007, defendant was sentenced to 23 years in prison, including a five-year enhancement pursuant to Penal Code section 667, subdivision (a), and a 10-year firearm enhancement under section 12022.53, subdivision (b). The motion further alleged that the trial court erred in calculating defendant's presentence custody credit resulting in a loss of two days. Defendant asserted that the miscalculation was an error in the pronouncement of judgment, not a clerical error, requiring resentencing. The motion prayed that in the course of resentencing the trial court exercise its discretion to strike one or both of the enhancements under the recent amendments to sections 667, 12022.53, and 1385.
All further statutory references are to the Penal Code, unless otherwise indicated.
On October 1, 2019, the trial court issued an order giving defendant one additional day of presentence conduct credit pursuant to section 1237.1, and denied the motion in all other respects. The court found that there was no authority to recall defendant's sentence under section 1237.1 or either of the recently amended enhancement statutes. Further, the court refused to strike either enhancement even if it was within the court's authority to do so. Defendant filed a timely notice of appeal from the order.
The amended statutes at issue here apply retroactively only to cases not yet final at the time the amendments took effect, and give the trial court discretion to strike enhancements only at sentencing or resentencing. (See People v. Zamora (2019) 35 Cal.App.5th 200, 203, 207-208.) Miscalculation of credits is a clerical error, the correction of which does not involve recalling the sentence or resentencing. (See People v. Humphrey (2020) 44 Cal.App.5th 371, 379-380.) --------
We reject defendant's contention that the correction in custody credits gave the trial court jurisdiction to recall his sentence. Defendant relies on a federal case, Gonzalez v. Sherman (9th Cir. 2017) 873 F.3d 763, for indirect support. In that case, the federal appeals court held that a recalculation of custody credits results in a new judgment "that renders a subsequent habeas petition not second or successive even if the petition challenges only undisturbed portions of the original judgment. [Citation.]" (Id. at pp. 678-679.) We are not bound by the decisions of the federal appellate courts. (People v. Brooks (2017) 3 Cal.5th 1, 91.) Moreover, we find People v. Humphrey (2020) 44 Cal.App.5th 371, 379-380 directly on point and more persuasive. There a California appellate court held that a miscalculation of custody credits is a clerical error, and does not operate to give a defendant retroactive application of the new enhancement provisions.
Defendant also claims that he was entitled to additional actual days of presentence custody credit. He alleges that the date of arrest was December 18, 2006, and the date of sentencing was December 4, 2007, which would make him entitled to 352 actual days, not the 349 days awarded. However, he has not pointed to any evidence in the appellate record which would support his claim the he was arrested on December 18, 2006, and remained in custody until sentencing. We presume the order to be correct absent evidence to the contrary.
Finally, defendant contends that the amended abstract of judgment issued by the superior court clerk on October 18, 2019, erroneously shows total credits of 400 instead of 401. Attached to the supplemental brief is a noncertified copy of the abstract, with no file stamp. We cannot take judicial notice of an unfiled, uncertified document attached the defendant's brief. (See People v. Medina (1990) 51 Cal.3d 870, 890; People v. Preslie (1977) 70 Cal.App.3d 486, 494-495.)
We have examined the entire record and are satisfied that defendant's appellate counsel has fully complied with his responsibilities and that no arguable issue exists. We conclude that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record and defendant's supplemental brief, 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, 123-124.)
The order of October 1, 2019, denying defendant's motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS /s/_________
ASHMANN-GERST, Acting P.J., /s/_________
CHAVEZ, J., /s/_________
HOFFSTADT, J.