Opinion
C086384
09-18-2018
THE PEOPLE, Plaintiff and Respondent, v. KHANH QUOC LE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF161986)
Appointed counsel for defendant Khanh Quoc Le asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Our review of the record discloses clerical errors in the abstract of judgment that must be corrected. We will affirm the judgment and direct the trial court to correct the abstract of judgment.
I
On July 30, 2016, Yuba County Sheriff's deputies received a report of two males firing firearms near a small dark car. One of the responding deputies saw a dark green Toyota Yaris speed away from the scene with two men inside. The deputy activated the overhead lights of his patrol vehicle and stopped the car. Defendant was the driver.
Deputies searched defendant's vehicle and found the following: two AR-15 style weapons, a nine-millimeter handgun, and a scale with methamphetamine residue. One of the AR-style weapons did not have a bullet button and had a collapsible stock and a flash suppresser on the tip of the barrel. The other had an unspent round. In the trunk, deputies found a six-inch cannon on a wooden base, three rifles, three shotguns (one of which was a 15-inch short barrel), a metal magazine containing 18 unspent rounds of .40-caliber ammunition, .38 special ammunition, 20-gauge and 10-gauge ammunition, nine-millimeter ammunition, and a 10-round magazine. Defendant admitted that he and his passenger had been shooting the guns, but believed he was shooting them in a safe manner. A records check revealed that the short-barreled shotgun and two of the other firearms found in defendant's possession had been reported stolen.
Defendant pleaded guilty to possession of a sawed-off shotgun (Pen. Code, § 33215) and possession of an assault weapon (§ 30605), and the trial court sentenced him to probation for two years.
Further undesignated statutory references are to the Penal Code. --------
On October 17, 2017, a petition for revocation of probation was filed, alleging defendant had violated probation by failing to obey all laws and failing to abstain from using controlled substances. Defendant had been convicted in two separate cases in Sutter County -- Sutter County case No. CRF17-0808 for possession for sale of a controlled substance (Health & Saf. Code, § 11378) and Sutter County case No. CRF17-1712 for attempted rape of an unconscious victim (§§ 664, 261, subd. (a)(4)(A)) and sexual battery (§ 243.4, subd. (a)). Defendant admitted the violation of probation.
The sentencing hearing occurred on December 27, 2017. Defendant had been sentenced on the two cases in Sutter County to an aggregate term of five years eight months. The trial court sentenced defendant in the instant case to two consecutive eight- month terms, for a new aggregate term of seven years. The trial court ordered defendant to pay various fines and fees and awarded presentence credit.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.
In our review of the record, we noted some clerical errors in the abstract of judgment that must be corrected.
At sentencing, the trial court awarded defendant 36 actual days and 36 conduct days of presentence credit, for a total of 72 days in the instant case, and those credits are reflected on the abstract of judgment. But the trial court also identified the presentence credit for both Sutter County cases. The trial court indicated that defendant had received 46 actual days and 46 conduct days, for a total of 92 days, in Sutter County case No. CRF17-1712 (which the trial court identified as Case A, count A2). And the trial court said defendant had received one actual day and no conduct days in Sutter County case No. CRF17-0808 (which the trial court identified as Case B, count B1). The trial court also indicated that the fines and fees from the Sutter County cases remained imposed, identifying them as two $300 restitution fines, two suspended $300 parole revocation fines, a $300 fine plus assessments, $80 in court operation assessments and $60 in conviction assessments.
The abstract of judgment does not include the fines and fees imposed or the presentence credit awarded in either of the Sutter County cases. Instead, it states that "[a]ll fines/fees and custody credits previously ordered on Sutter County cases remain" the same. The fines and fees imposed and the presentence credit awarded in those cases must be listed on the abstract of judgment next to the corresponding case/count identifier.
There is also a note on the abstract that "[a]ny previous custody credits are now to be determined by CDC." That description does not accurately reflect the trial court's oral pronouncement. The trial court ordered that the presentence conduct credit between the November 28, 2017 Sutter County sentencing date and the Yuba County sentencing date (29 days) would need to be calculated by the Department of Corrections and Rehabilitation. The language on the abstract of judgment must be corrected to comport with the oral pronouncement of sentence. (See People v. Rowland (1988) 206 Cal.App.3d 119, 123.)
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment clearly identifying the fines and fees imposed and the presentence credit awarded for each count in each case, and correcting the language relating to the calculation of credit by the Department of Corrections and Rehabilitation. The trial court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
DUARTE, J. /S/_________
HOCH, J.