Opinion
C086669
11-21-2018
THE PEOPLE, Plaintiff and Respondent, v. CARY TAYLOR, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE008446)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Defendant pleaded no contest to felony assault (Pen. Code, § 245, subd. (a)(4)) and was sentenced to five-years of probation and 180 days in jail with credit for 49 days served. The court imposed the mandatory fines, fees, and assessments. The stipulated factual basis for the plea was defendant's swinging a tree limb at a Starbuck's employee.
Undesignated statutory references are to the Penal Code. --------
Thereafter, the People filed a petition to revoke defendant's probation for failing to obey all laws based upon his arrest and charge for violations of resisting an executive officer (§ 69), four violations of resisting a peace officer (§ 148, subd. (a)), and possessing drug paraphernalia (Health & Saf. Code, § 11364). Defendant received a court trial and was convicted in case No. 17FE015676 of one count of resisting an executive officer, two counts of resisting a peace officer and two counts of possessing drug paraphernalia. Because of these convictions, the court found defendant violated the probation term that he obey all laws and referred the matter for a probation presentence report.
After reviewing the probation department's recommendation and hearing argument from counsel, the trial court denied defendant a further grant of probation, sentenced him to the upper term of four years with credit for 210 days, and imposed the mandatory fees and fines. Defendant timely appealed.
We appointed counsel to represent defendant on appeal. 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 have elapsed, and we have received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
However, our review of the record has revealed a sentencing error which was corrected by the court clerk in an amended abstract of judgment on June 21, 2018 (nunc pro tunc to March 2, 2018), but without an order of the judge correcting the judgment itself. We will modify the judgment to correct the sentencing error.
DISPOSITION
The judgment is modified to reflect defendant's sentence for a violation of section 245, subdivision (a)(4), not subdivision (a)(1); the judgment is affirmed as modified.
HULL, Acting P. J. We concur: MAURO, J. MURRAY, J.