Opinion
A132731
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. ANDRE DARNELL McCLENDON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C143066B)
In 2004, a jury convicted appellant Andre Darnell McClendon of torture (Pen. Code, § 206) (Count 1) and child abuse, (§ 273a) (Count 2). The trial court sentenced him to state prison and this court affirmed the conviction. (People v. McClendon, Aug. 2, 2006 (A106925) [nonpub. opn.].) In 2011, the California Department of Corrections and Rehabilitation (CDC&R) notified the sentencing court of a possible error in appellant's original sentence. The court held a resentencing hearing and corrected appellant's sentence, which resulted in an additional one-year term of imprisonment.
Unless otherwise noted, all further statutory references are to the Penal Code.
Appellant timely appealed and we appointed counsel to represent him on appeal. Counsel presents no argument for reversal, but asks this court to conduct an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436, 441-442. Appellant filed a supplemental brief contending: (1) the court did not have discretion to apply the one-year enhancement set forth in section 12022, subdivision (b)(1); (2) his due process rights were violated because he did not have advance notice of the resentencing hearing; and (3) the court failed to order a supplemental probation report in violation of California Rules of Court, rule 4.411(c). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged appellant with torture (§ 206) (Count 1) and child abuse (§ 273a) (Count 2) arising out of an incident in 2002 where appellant burned the arm, stomach and thighs of a young girl (the victim), who was five years old at the time of the crimes and seven at trial. The victim is the daughter of appellant's then girlfriend. In 2004, a jury convicted appellant of both counts; it also found appellant used a weapon during the commission of Counts 1 and 2 and inflicted great bodily injury (§ 12022.7, subd. (a)) (Count 2). The court sentenced appellant to a life term in state prison on Count 1 and ordered the one-year enhancement pursuant to section 12022, subdivision (b)(1) to run concurrently with the life sentence. The court sentenced appellant to eight years on Count 2 but stayed the sentence.
In early 2011, and shortly before appellant's parole consideration hearing date, the CDC&R notified the court that appellant's abstract of judgment reflected a potentially illegal sentence because section 12022, subdivision (b)(1) required appellant's one-year enhancement to run consecutively, not concurrently with the life term. The court held a hearing to correct the sentence. At the resentencing hearing, the court determined appellant's original sentence was erroneous because section 12022, subdivision (b)(1) "requires that the enhancement be imposed consecutively. . . ." Defense counsel urged the court to strike the enhancement pursuant to section 1385 because the parole board had determined appellant was rehabilitated and had concluded he was a "low risk to the public." Counsel also noted appellant had "remained disciplinary free" for the duration of his sentence and had earned a college degree and a paralegal certificate while incarcerated. The People acknowledged the court had discretion to strike the enhancement under section 1385 but urged the court to decline to strike it based on the circumstances surrounding appellant's commission of the offenses.
The court declined to strike the enhancement. It noted it had considered the "parole board's decision to release [appellant] into the community" and "the facts that dominated the decisions that were made at the [original] sentencing hearing." Although the court noted that appellant "ha[d] done very well in a highly structured incarcerated situation," it determined the facts surrounding the offense "trump[ed] [appellant's] good behavior in prison." The court described the facts underlying the offense as "horrendous" and characterized appellant's actions as "premeditated and enormously cruel." The court corrected the abstract of judgment to reflect an additional one-year term to run consecutive to the life sentence on Count 1. The court stayed the sentence on Count 2.
DISCUSSION
We have examined the entire record and are satisfied no arguable issues exist. Section 12022, subdivision (b)(1) provides, "[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment pursuant to subdivision (h) of section 1170 for one year, unless use of a deadly or dangerous weapon is an element of that offense." (Italics added.) Section 1385 authorizes the court to dismiss or strike a section 12022, subdivision (b)(1) enhancement "in furtherance of justice." (§ 1385, subds. (a), (c)(1); People v. Jones (2007) 157 Cal.App.4th 1373, 1378-1379.) The court did not abuse its discretion by denying appellant's motion to strike the additional punishment for the enhancement. It properly considered appellant's postconviction behavior and the facts and circumstances surrounding the offense.
Appellant's due process rights were not violated. Appellant was represented by counsel; counsel was not ineffective. Counsel for appellant's performance at the resentencing hearing was not deficient, nor did it fall below an objective standard of reasonableness. (People v. Maury (2003) 30 Cal.4th 342, 389.) Counsel persuasively urged the court to strike the enhancement and brought to the court's attention appellant's postconviction behavior. Finally, the court did not err by resentencing appellant without ordering a supplemental probation report pursuant to California Rules of Court, rule 4.411(c). Appellant's conviction of torture in violation of section 206 rendered him statutorily ineligible for probation (§ 667.5, subd. (c)(7); 667.61, subd. (d)(3), 1170.12, subds. (a)(2), (4)). As a result, no supplemental probation report was mandated, particularly where counsel did not request such a report at the resentencing hearing. (See People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1433.) People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181, does not compel a different result.
The judgment is affirmed.
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Jones, P.J.
We concur: ____________
Needham, J.
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Bruiniers, J.