Opinion
E067771
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID DION GARCIA, Defendant and Appellant.
David Dion Garcia, in pro. per.; Richard L. Fitzer, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FMB900221) OPINION APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed with directions. David Dion Garcia, in pro. per.; Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant David Dion Garcia guilty of grossly negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a), count 1), possession of a controlled substance (methamphetamine) while possessing a firearm (Health & Saf. Code, § 11370.1, subd. (a), count 2), being a felon in possession of a firearm (Pen. Code, former § 12021, subd. (a), count 3), felony child abuse under circumstances likely to cause great bodily injury or death (Pen. Code, § 273a, subd. (a), count 4), and possession of a controlled substance (Health & Saf. Code, § 11377, count 5). The jury also found true the allegations that defendant personally used a firearm in the commission of all the offenses (Pen. Code, § 12022.5, subd. (a)), that he had suffered one prior serious or violent felony conviction (Pen. Code, § 667, subd. (a)), and that he had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). At sentencing, the court selected count 4 as the principal term and imposed a second-strike sentence of 12 years, plus 10 years for the firearm enhancement. The court imposed two years for count 2 and added five years for the prior serious felony conviction. (Pen. Code, § 667, subd. (a).) The sentences on counts 1, 3 and 5 were stayed. Defendant's total prison commitment was thus 29 years.
The facts and procedural history are taken from our prior opinion. (People v. Garcia (Sept. 6, 2012, E053503) [nonpub. opn.].)
Defendant previously filed an appeal (People v. Garcia, supra, E053503), and this court reversed the judgment with directions for the trial court to hold a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) on whether to appoint new counsel to pursue a motion for new trial. We ordered that, if the court granted the Marsden motion, it must appoint new counsel and entertain a motion for new trial, if newly appointed counsel filed one. If newly appointed counsel did not move for a new trial, if any such motion made was denied, or if defendant's Marsden motion was denied, the court was to reinstate the judgment. In the event of reinstatement of the judgment, we directed that the abstract of judgment be corrected to reflect: (1) 659 days of actual presentence custody credit, plus 98 days of presentence conduct credits, for a total of 757 days of presentence credits; and (2) the stayed sentences on counts 1, 3 and 5 were run concurrent with the sentence on count 4.
The trial court subsequently granted defendant's Marsden motion and appointed new counsel. New counsel filed a motion for new trial based on ineffective assistance of counsel, arguing that the prior counsel failed to investigate and present an intoxication defense, and that he never discussed the possibility of entering a plea with defendant. The court held a hearing and heard testimony from the prior counsel. The court noted that it was present for the trial and observed the prior counsel's performance. The court concluded that counsel's performance did not fall below an objective standard of reasonableness and denied the motion. It then reinstated the judgment in accordance with this court's order in People v. Garcia, supra, E053503.
Defendant filed a timely notice of appeal. We affirm.
FACTUAL BACKGROUND
On the evening of November 6, 2008, B.A. and P.P. were asleep in their home, and their friend, C.J., and her two children were asleep in the front room. Defendant and his girlfriend pounded on the front door. C.J. woke up and answered the door. She let them in and went to get B.A. from the back bedroom. B.A. came out to the front room, and defendant asked for a ride to a friend's house. B.A. went back into the bedroom and asked P.P. to drive them. B.A. went out to the front room again, when defendant suddenly became extremely agitated and yelled at him. Defendant pulled out a gun and fired several shots at the wall, repeatedly crying out, "Tell him to get back," or "Tell him to get away." He was shooting at what was apparently a phantom intruder. When defendant fired his pistol, both of C.J.'s children woke up, startled.
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 original trial counsel was constitutionally ineffective; (2) whether the trial court should have granted the motion for new trial based on ineffective assistance of counsel; and (3) whether the court properly resentenced defendant in light of this court's prior opinion. 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 done. Defendant filed a five-page, handwritten brief, which basically contains recitations from various cases and statutes, describing the definition of "willful harm or injury to child," the defense of diminished capacity, and voluntary intoxication as a defense. However, defendant fails to raise any actual claim with regard to his own case. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. [Citation.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Therefore, no discussion is necessary.
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.
Although not raised by the parties, we note a few apparent clerical errors. Generally, a clerical error is one inadvertently made. (People v. Schultz (1965) 238 Cal.App.2d 804, 808.) Clerical error can be made by a clerk, by counsel, or by the court itself. (Ibid. [judge misspoke].) A court "has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.]" (In re Candelario (1970) 3 Cal.3d 702, 705.)
This court previously directed the abstract of judgment to be corrected to show that the stayed sentences on counts 1, 3, and 5 were to run concurrent with the sentence on count 4, rather than consecutive. However, when the clerk made such correction, he/she neglected to mark the boxes showing that the sentences on those counts were stayed under section 654. These boxes were checked on the original abstract of judgment and should have remained checked. Additionally, the firearm enhancement (Pen. Code, § 12022.5, subd. (a)) on count 3 was marked stayed on the original abstract of judgment; however, the amended abstract erroneously reflects that the court imposed 10 years on the enhancement. The abstract should be corrected to show the enhancement was stayed, and no time was imposed on it.
We note that count 5 was reduced to a misdemeanor and is thus not shown on the amended abstract of judgment. --------
DISPOSITION
The superior court clerk is directed to correct the abstract of judgment to reflect that the sentences on counts 1 and 3 were stayed under section 654, and that the firearm enhancement (Pen. Code, § 12022.5, subd. (a)) on count 3 was also stayed, and no time was imposed on it. The superior court clerk is directed to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.