Opinion
A167504
10-25-2023
THE PEOPLE, Plaintiff and Respondent, v. CURTIS LEE HILL, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5001819093
MARKMAN, J. [*]
Defendant Curtis Hill appeals from a judgment entered after he was resentenced on one count of first degree burglary following a previous appeal. His appointed appellate counsel has filed a brief asking this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). Hill's counsel informed him of his right to file a supplemental brief, but he has not filed one. We have independently reviewed the record in accordance with our obligations under Wende. We find no errors or other issues requiring briefing and we affirm the judgment. We remand the matter simply for the clerk to correct a clerical error in the abstract of judgment.
BACKGROUND
This court summarized the charges against Hill in connection with his original appeal from the merits of his burglary conviction, explaining: "A first amended information filed on July 25, 2019, charged Hill with two counts of first degree residential burglary (Pen. Code, § 459), committed on July 25 (count 1) and August 4, 2018 (count 2), and one count of attempted first degree burglary, committed on August 4, 2018 (count 3). It was alleged that Hill had suffered four prior serious or violent felony convictions (§§ 667, subds. (d) &(e), 1170.12, subds. (b) &(c)), two of which were also alleged as prior serious felony convictions under section 667, subdivision (a)(1), and had served a prior prison term for a violent felony (§ 667.5, subd. (a)), and three prior prison terms for felonies (§ 667.5, subd. (b)). Additional prior convictions were alleged for purposes of probation ineligibility." (People v. Hill (Aug. 3, 2022, A160120) [nonpub. opn.] (Hill).)
Further undesignated statutory references will be to the Penal Code.
"After a jury trial, Hill was found guilty of first degree burglary on count 2. The jury was unable to reach a verdict on counts 1 and 3, and the court declared a mistrial as to those counts. 'Three Strike' prior conviction allegations were submitted to the jury in a bifurcated trial and found true."(Hill, supra, A160120.)
The prior strikes were convictions dating back to 1985, two for residential robbery and one for first degree burglary.
"At sentencing, the trial court denied Hill's request for probation under the auspices of the Behavioral Health Court, struck two of the prior strikes (all of which arose from a single incident) and the section 667, subdivision (a) enhancement, and imposed the upper term of six years, doubled due to the prior strike, for a total prison term of 12 years. Over defense objection, the court imposed a restitution fine of $300 (§ 1202.4), imposed but suspended a $300 parole revocation fine (§ 1202.45), and imposed a $40 court operations assessment (§ 1465.8) and $30 court conviction assessment (Gov. Code, § 70373)." (Hill, supra, A160120.)
Hill appealed. This court affirmed his conviction but remanded the matter in light of then-recent amendments to section 1170, which the Legislature enacted by Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) and Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5). The legislative amendments altered the rules governing the trial court's ability to exercise discretion in selecting a term of imprisonment where a statute specifies three possible terms. (Hill, supra, A160120; § 1170, subd (b).) We also remanded for reconsideration of the fees and fines imposed. (Ibid.)
Hill filed a resentencing brief on January 23, 2023. He argued that the appropriate term for his burglary conviction was the lower term of two years, based on childhood trauma and mental health issues causing psychological trauma. (§ 1170, subd. (b)(6)(A).) Hill also moved to strike his prior strike.
At the March 3, 2023 resentencing hearing, the court agreed that the lower term of two years was appropriate. The court denied Hill's request to strike the prior strike, finding it was not in the interests of justice given Hill's criminal history and offenses. Accordingly, the court sentenced Hill to the lower term of two years, doubled to four years due to the prior strike. The court calculated a total of 2,241 days of credit: 1,677 days of actual credits plus 564 days of local conduct credits. Given the sentence and credits, the court noted that Hill "should be released very soon."
With regard to Hill's fines, the trial court "permanently stayed" the $300 restitution fine. It imposed but suspended the $300 parole revocation fine. It did not impose the $40 court operations assessment or $30 court conviction assessment. Hill filed a timely notice of appeal.
On August 21, 2023, Hill's appointed appellate counsel filed a letter with the trial court pursuant to People v. Fares (1993) 16 Cal.App.4th 954. (See id. at p. 960 ["We therefore urge counsel presented with apparent error in the calculation of presentence custody credits to attempt correction in the trial court before elevating the issue to the stature of formal appeal"].) Counsel asked the trial court to correct the March 3, 2023 abstract of judgment to reflect the court's oral pronouncement regarding credits: 1,677 (not 564) days of actual credits plus 564 days of local conduct credits, for a total of 2,241 (not 1,128) days of credit. Nothing in the record indicates that the trial court has yet made this correction.
DISCUSSION
We have reviewed the record on appeal for any arguable issues. Our review shows that the sentence imposed is authorized by law and is consistent with the recent amendments to section 1170. Competent counsel represented Hill, and counsel acted to protect his rights and interests. We conclude there are no arguable issues within the meaning of Wende, supra, 25 Cal.3d 436 that require further briefing.
We agree with appointed appellate counsel, however, that the abstract of judgment contains a clerical error that should be corrected. The transcript of the resentencing hearing reflects that the trial court calculated 1,677 days of actual credits plus 564 days of local conduct credits, for a total of 2,241 days of credit.
DISPOSITION
The judgment is affirmed. The clerk of the court is directed to prepare an amended abstract of judgment reflecting the credits awarded by the trial court-1,677 days of actual credits plus 564 days of local conduct credits, for a total of 2,241 days of credit-and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: Stewart, P.J., Richman, J.
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.