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People v. Red

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jun 21, 2012
E055184 (Cal. Ct. App. Jun. 21, 2012)

Opinion

E055184 Super.Ct.No. RIF1102834

06-21-2012

THE PEOPLE, Plaintiff and Respondent, v. KEWAN BERNARD RED, Defendant and Appellant.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. Richard J. Hanscom, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Kewan Bernard Red pled guilty to the sheet as set forth, post, with an indicated sentence of 20 years four months. He was then sentenced to the indicated sentenced of 20 years four months to state prison with credit for time served. Defendant appeals from the judgment, challenging the sentence or other matters occurring after the plea as well as the validity of the plea. We affirm the judgment.

The court notes that defendant's signatures and printed name are spelled both "Red" and "Redd" throughout the record.

I


FACTUAL AND PROCEDURAL BACKGROUND

On April 21, 2011, deputies executed and served a narcotics related search warrant at an address in the City of Perris. Upon entry, deputies found defendant, defendant's wife, another female, and three small children in the residence. A search of the residence revealed approximately three-fourths of a pound of marijuana, baggies, a scale, a loaded semiautomatic handgun, and ammunition. After defendant waived his constitutional rights, he admitted that he made most of his money selling marijuana from his residence, and that he usually kept a gun with the children's clothing in the master bedroom dresser.

Prior to a preliminary hearing, on August 22, 2011, a seven-count amended felony complaint was filed against defendant. The amended felony complaint charged defendant with possession of marijuana for sale (Health & Saf. Code, § 11359, count 1); possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a), count 2); possession of hydrocodone while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, count 3); child endangerment (Pen. Code, § 273a, subd. (a), count 4); receipt of stolen property (Pen. Code, § 496, subd. (a), count 5); felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1), count 6); and felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1), count 7). The amended complaint also alleged that in the commission of counts 1 and 2, defendant was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)), and that defendant committed count 7 while released from custody (Pen. Code, § 12022.1). The amended complaint further alleged that defendant had suffered two prior serious and violent felony strike convictions. (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(a)).

Defendant's wife was also charged in some of the counts. She, however, is not a party to this appeal.

On November 16, 2011, at the People's request, the trial court dismissed counts 2 and 3, as well as the enhancement charged in count 2. Defendant then pled to the remaining counts and allegations. In return, defendant was promised an indicated sentence of 20 years four months in state prison.

The People had subsequently received a prescription from defendant's wife for the hydrocodone.
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The sentencing hearing was held on December 2, 2011. At that time, the trial court struck one of the prior strike allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and sentenced defendant to 20 years four months in state prison with credit for time served as follows: the upper term of 12 years on count 4; the middle term of one year four months on count 1; one year for the enhancement allegation attached to count 1; the middle terms of one year four months on counts 5, 6, and 7; and two years for the enhancement allegation attached to count 7.

On December 7, 2011, defendant filed a notice of appeal based on the sentence or other matters occurring after the plea, as well as challenging the validity of the plea. Defendant also requested a certificate of probable cause, which was granted.

II


DISCUSSION

Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, which he has done. In his two-page supplemental brief, defendant generally challenges the service of the search warrant by the deputies, claiming the deputies "entered through the garage" without identifying themselves "correctly." He also generally alleges that his Fourth, Sixth, Eighth, and Fourteenth Amendments were violated. We reject these contentions.

Initially, we note that defendant's claims are "'perfunctorily asserted without argument in support . . . .'" (People v. Williams (1997) 16 Cal.4th 153, 206.) We need not consider mere contentions of error unaccompanied by legal argument since they have not been properly raised. (Ibid.; People v. Earp (1999) 20 Cal.4th 826, 884.) "'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 793.)

Furthermore, there is nothing in the record to suggest that the search warrant was unlawfully executed or served. There is also nothing in the record to show that defendant's constitutional rights were violated. "[I]f defendants have a specific argument other than the lack of a warrant as to why a warrantless search or seizure was unreasonable, they must specify that argument as part of their motion to suppress and give the prosecution an opportunity to offer evidence on the point. [Citation.] For example, defendants who believe the police failed to comply with the knock-notice requirement of Penal Code section 844 cannot simply bring a motion to suppress alleging a warrantless search or seizure and then wait until the appeal to raise the knock-notice issue. Rather, defendants must specify the knock-notice issue in the course of the trial court proceeding." (People v. Williams (1999) 20 Cal.4th 119, 130.)

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we independently reviewed the record for potential error. We have now completed our independent review of the record and find no arguable issues. However, we note that the reporter's transcript indicates that defendant admitted two prior strike allegations at the November 16, 2011 plea hearing, and that the trial court struck one of the prior strike allegations at the December 2, 2011 sentencing hearing. Nonetheless, the November 16, 2011 minute order reflects defendant admitted only one prior strike allegation. In addition, the December 2, 2011 minute order does not reflect that the trial court struck the August 8, 1995, prior strike allegation for attempted robbery.

"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; see also People v. Mesa (1975) 14 Cal.3d 466, 471.) When such a discrepancy appears, we have the inherent power to correct clerical errors to make records reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

III


DISPOSITION

The superior court clerk is directed to amend both the November 16 and December 2, 2011, minute orders to reflect that defendant admitted two prior strike conviction allegations at the November 16, 2011, plea hearing; and that the trial court struck the August 8, 1995, prior strike conviction for attempted robbery at the December 2, 2011, sentencing hearing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

RICHLI

J.

CODRINGTON

J.


Summaries of

People v. Red

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jun 21, 2012
E055184 (Cal. Ct. App. Jun. 21, 2012)
Case details for

People v. Red

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KEWAN BERNARD RED, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jun 21, 2012

Citations

E055184 (Cal. Ct. App. Jun. 21, 2012)