Opinion
C085755
07-27-2018
THE PEOPLE, Plaintiff and Respondent, v. LAMARR MCNEAL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SF118963B, STKCRFE20120006430 )
Appointed counsel for defendant Lamarr McNeal filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment. However, we shall order a corrected abstract of judgment to correct a clerical error.
BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Although the parties stipulated to the preliminary hearing transcript as the factual basis for defendant's plea, the preliminary hearing transcript is not included in the record on appeal.
In July 2011, defendant and several cohorts robbed, shot and killed B.S. and assaulted A.M. Although originally charged with murder, in February 2015 defendant pleaded guilty to the voluntary manslaughter of B.S. (Pen. Code, § 192, subd. (a), count one) and assault by means likely to produce great bodily injury on A.M. (§ 245, subd. (a)(1), count two), and admitted he used a firearm during the manslaughter offense (§ 12022.5, subd. (a)) and a principal was armed with a firearm during the assault offense (§ 12022, subd. (a)(1)) in exchange for a stipulated 23-year prison sentence and dismissal of the remaining charges and allegations.
Codefendants Kejuan Dionton Reaves, Andrew Rafael Garcia, and Eric Tabin are not parties to this appeal.
During the plea hearing, the prosecutor agreed to amend the information to change the murder charge alleged in count one to voluntary manslaughter and also to amend count two to allege an assault by means likely to produce great bodily injury. The amended information is not included in the record on appeal.
Undesignated statutory references are to the Penal Code. --------
In April 2015, the trial court sentenced defendant to serve the negotiated 23-year prison term that included the upper term of 11 years for the voluntary manslaughter conviction, a consecutive 10-year term for the attached firearm enhancement under section 12022.5, subdivision (a), a consecutive one-year term (one-third the midterm) for the assault conviction, and a consecutive one-year term for the attached principal armed with a firearm enhancement under section 12022, subdivision (a)(1).
Two years later, in May 2017, a case manager with the Department of Corrections and Rehabilitation wrote a letter to the trial judge informing him the sentence for the section 12022, subdivision (a)(1), firearm enhancement attached to the assault conviction should have been four months. The case manager explained that because the enhancement was attached to a subordinate term sentenced at one-third the midterm, the court was required to impose one-third of the term for any enhancement related to that count under section 1170.1, subdivision (a). The trial court issued an ex parte order that no action was necessary and that the original sentence was to remain.
In September 2017, defendant filed a motion to modify the judgment to reflect a four-month sentence for the section 12022, subdivision (a)(1), enhancement. Defendant argued that because the enhancement attached to a consecutive subordinate term, section 1170.1, subdivision (a), required the court to impose one third of the term for the enhancement. The trial court denied defendant's motion. Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
After examining the record, we find no arguable error that would result in a disposition more favorable to defendant. The trial court properly denied defendant's motion to reduce the one-year term on the section 12022, subdivision (a)(1), enhancement attached to the assault conviction. Where a defendant pleads guilty in return for a specified sentence, as defendant did here, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure so long as the trial court did not lack fundamental jurisdiction. (People v. Hester (2000) 22 Cal.4th 290, 295.) " 'When a defendant maintains that the trial court's sentence violates rules which would have required the imposition of a more lenient sentence, yet the defendant avoided a potentially harsher sentence by entering into the plea bargain, it may be implied that the defendant waived any rights under such rules by choosing to accept the plea bargain.' " (Ibid.)
The abstract of judgment, however, does contain a clerical error that must be corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185 ["Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts"].) There are no boxes checked in Item 4 on the abstract of judgment. We shall direct the trial court to correct Item 4 of the abstract of judgment by checking the boxes showing defendant was sentenced to prison pursuant to section 1170, subdivision (a), due to a current or prior serious or violent felony.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to correct the abstract of judgment in Item 4 to show defendant was sentenced to prison pursuant to Penal Code section 1170, subdivision (a), due to a current or prior serious or violent felony. The court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
MAURO, J.