People v. Foy

Full title: THE PEOPLE, Plaintiff and Respondent, v. STEVEN FOY, Defendant and…

Court: California Court of Appeals, Third District, Sacramento

Date published: Jan 13, 2009

No. C057629 (Cal. Ct. App. Jan. 13, 2009)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. STEVEN FOY, Defendant and Appellant. C057629 California Court of Appeal, Third District, Sacramento January 13, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 07F02515

BUTZ, J.

Defendant Steven Foy pleaded no contest to one count of second degree robbery (Pen. Code, § 211),¹ admitted a strike enhancement for a prior conviction of first degree burglary (§§ 459, 667, subds. (b)-(i), 1170.12), and admitted he had violated his probation in the first degree burglary case. The robbery charge stemmed from an incident in which defendant hit the victim and took her cell phone as she was walking in a park.

1 Undesignated statutory references are to the Penal Code.

In exchange for his plea, it was agreed that defendant would receive a state prison sentence of four years (the low term doubled) for the robbery offense and a consecutive term of one year four months for the probation case (No. 04F04477). In addition, two other counts of second degree robbery, alleged to have occurred on the same date against different victims, were dismissed with a Harvey waiver.² Defendant was sentenced in accord with this agreement.

2 See People v. Harvey (1979) 25 Cal.3d 754.

Defendant appealed. The court denied defendant’s request for a certificate of probable cause.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal.³ 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.

3 Defendant’s custody credits were adjusted pursuant to a letter from his appellate counsel to the trial court.

We have undertaken an independent examination of the entire record in this matter and found no arguable error that would result in a disposition more favorable to defendant. However, we note a clerical error on both the original and amended abstracts of judgment, which state the trial court ordered “$304.34” in restitution to one of the victims, whereas the court’s order was for $307.34. Accordingly, we shall direct the trial court to prepare a second amended abstract of judgment setting forth the correct amount of restitution.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a second amended abstract of judgment reflecting the correct amount of restitution and to forward a certified copy thereof to the Department of Corrections and Rehabilitation.

We concur: SCOTLAND, P. J., HULL, J.