Opinion
C080436
03-28-2017
THE PEOPLE, Plaintiff and Respondent, v. GEORGE NAYLOR, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F07614)
Appointed counsel for defendant George Naylor has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1975) 25 Cal.3d 436 (Wende).) After reviewing the record, we shall modify the judgment to impose two mandatory assessments. As modified, we affirm the judgment.
We provide the following brief description of the facts and procedural history in the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110.)
On October 8, 2014, Harvey Fry parked his car in front of a laundromat, went in, picked up and dropped off clothes, and returned to his car. He opened the driver's door and then went to the back of the car to put items in the trunk. Fry saw a man approach on a bicycle, get off, and reach inside Fry's car through the open door, rummaging around for something. Fry confronted the man who punched Fry in the face and then fled on his bicycle. Fry suffered a black eye.
Two passersby saw the incident and followed the shirtless man on the bicycle to a cemetery, calling the police with their route. A receptionist in the lobby of the cemetery building was confronted by a shirtless man who asked for a shirt. After the employee gave the man a dark sweatshirt, the man wandered around the building and then left.
An officer arrived at the cemetery and met with the employee. The officer found defendant lying on the lawn. He jumped up when the officer approached. When asked for identification, defendant gave a false name and date of birth. The officer found a bicycle in the cemetery bushes.
In a field showup, Fry identified defendant as the man who punched him. Fry recognized the bicycle as the same kind and size as the one defendant had been riding.
On October 24, 2014, Donna Knieriem was stopped at a red light. Defendant approached her car from the passenger side. Before she could lock the door, defendant opened the passenger door, reached in and grabbed Knieriem's purse from the passenger seat. Knieriem grabbed a pocket of the purse to hold on but the man forcibly took it and fled on foot. Her purse included numerous items including her cell phone.
After the robbery, a man, not defendant, turned in Knieriem's purse at a casino. Knieriem did not see the casino video recording of the man.
An officer responded to an emergency call. Knieriem described defendant as Hispanic, aged mid-to-late 20's, 5 feet 8 inches tall, 160 to 170 pounds, with dark hair, wearing dark pants, a gray T-shirt, a black baseball cap, and tattoos on one of his forearms.
On October 30, 2014, Knieriem obtained a new cell phone and photos from her old phone were automatically uploaded. Scrolling through the photos and videos, Knieriem saw photos and videos of defendant. She e-mailed the photos to a detective who was able to use the photos to find defendant's October 8 booking photo and prepared a photo lineup. Knieriem identified defendant from the photo lineup.
At trial, Knieriem testified defendant did not appear to be Hispanic but she noted he had shaved off his mustache and goatee. She also testified he did not have forearm tattoos in the photos on her new cell phone. When Knieriem described defendant at the scene, she thought he had black tattoos on his forearm but now believed she had seen a dark hoodie rather than all black tattoos on his forearm.
The trial court granted the prosecutor's motion to consolidate the complaints alleging the offenses on the two dates. The court later denied defense counsel's motion to sever.
A jury convicted defendant of second degree robbery of Knieriem (Pen. Code, § 211 ; count one), attempted theft of personal property against Fry, a misdemeanor (§§ 664/484, subd. (a); count two), battery upon Fry, a misdemeanor (§ 242; count three), and false identification to an officer, a misdemeanor (§ 148.9, subd. (a); count four). Defendant admitted a prior prison term allegation. (§ 667.5, subd. (b).)
Undesignated statutory references are to the Penal Code. --------
The trial court sentenced defendant to serve an aggregate state prison term of six years, consisting of the upper term of five years for robbery (count one) plus one year for the prior prison term. For counts two, three, and four, the court imposed 90, 180, and 68 days, respectively. Applying defendant's presentence custody credit, the court determined the sentence for each misdemeanor had been satisfied by time served.
Defendant appeals.
Appointed counsel filed an opening brief that sets forth the facts of the case and requests 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 of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Our review of the record discloses an error in the judgment. Although not orally imposed by the trial court at sentencing, the abstract of judgment reflects assessments of $160 pursuant to section 1465.8 and $120 pursuant to Government Code section 70373. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The abstract of judgment and court minutes must accurately reflect the oral pronouncement by the trial court and the clerk, in preparing those documents, lacks the power to add fines or fees not imposed by the court. (Id. at pp. 386-390.) Since these assessments are mandatory, we will modify the judgment to include them. (People v. Smith (2001) 24 Cal.4th 849, 854 [unauthorized sentence can be corrected at any time].) An amended abstract is not required since the abstract already reflects these assessments.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to provide for assessments of $160 pursuant to Penal Code section 1465.8 and $120 pursuant to Government Code section 70373. As modified, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MAURO, J.