Opinion
D081674
08-22-2023
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN ALFRED GARCIA, Defendant and Appellant.
Adrian Alfred Garcia, in pro. per.; and Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County, No. RIF125016 Helios J. Hernandez and John D. Molloy, Judges. Affirmed.
Adrian Alfred Garcia, in pro. per.; and Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
HUFFMAN, ACTING P. J.
In 2008, Adrian Alfred Garcia was convicted of attempted murder (Pen. Code, §§ 187& 664) and possession of a firearm by a felon (§ 12021, subd. (e)) and found to be an active member of a criminal street gang (§ 186.22, subd. (a)). The jury also found true the charge that Garcia discharged a firearm causing injury (§ 12022.53, subds. (c) &(d)).
All further statutory references are to the Penal Code unless otherwise specified.
Garcia was sentenced to a life term for the attempted murder conviction plus a term of 25 years to life for the firearm enhancement.
Garcia appealed and this court affirmed the convictions but ordered the trial court to strike the term added for the gang enhancement. The matter was remanded with directions to modify the sentence and correct the abstract of judgment accordingly. (People v. Garcia (June 30, 2010, D054982) [nonpub. opn.].)
In 2018, the Department of Corrections and Rehabilitation (CDCR) sent a letter to the superior court advising the abstract of judgment should be modified to clarify the term, if any imposed for the gang enhancement.
The court appointed counsel for Garcia and held a hearing on the appropriate response to the CDCR letter.
At the hearing on the CDCR letter, the parties agreed the abstract of judgment should be revised to make clear the gang finding was not an enhancement adding additional time to Garcia's sentence.
The court ordered that the abstract must be amended to reflect the changes as agreed by the parties.
Garcia filed a notice of appeal from the order modifying the abstract of judgment.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to independently review the record for error as mandated by Wende. We offered Garcia the opportunity to file his own brief on appeal. Garcia has responded by filing a supplemental brief. We will discuss his submission later in this opinion.
The facts of the offense are discussed in our previous opinion. There is no need to discuss the facts again in this appeal.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified some possible issues that were considered in evaluating the potential merits of this appeal.
1. Did the court properly correct the abstract of judgment following the decision of this court in People v. Garcia, supra, D054982?
2. Did the proceeding regarding the correction of the abstract of judgment constitute resentencing?
Garcia submitted a lengthy brief discussing his complaints about the trial court's handling of the correction of the abstract. At base, Garcia argues he should have been brought to court so he could discuss possible issues regarding what he considers to be a resentencing hearing. The issue raised by the letter from CDCR referred to the accuracy of the abstract of judgment, not the validity of the sentence imposed after trial and later affirmed by this court. Garcia was represented by counsel in the proceedings, which did not constitute resentencing. Garcia was afforded due process in the proceedings to correct the abstract of judgment.
Garcia's supplemental brief does do not raise any arguable issues for reversal on appeal.
We have reviewed the record for error as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Garcia on this appeal.
DISPOSITION
The order amending the abstract of judgment in this case is affirmed.
WE CONCUR: O'ROURKE, J. KELETY, J.