Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F6304
HULL, J.Defendant Timothy Edward Thomas pleaded no contest to driving with a blood alcohol level of .08 percent or above with three prior driving under the influence convictions (Veh. Code, §§ 23152, subd. (b), 23550) and admitted a prior strike conviction. (Pen. Code, § 1170.12.) According to facts contained in a motion filed by the defense, the charges were based on an incident in which defendant was driving a motorcycle at a high rate of speed and was unable to negotiate a curve in the road, resulting in his motorcycle jumping the curb and colliding with a street sign. When later tested at the hospital, defendant’s blood alcohol level was .19 percent. According to the information, the three prior driving under the influence convictions admitted by defendant occurred within 10 years of his current offense, and his prior strike conviction was for a violation of Penal Code section 288, subdivision (a) (lewd and lascivious act with a child under 14 years). In exchange for defendant’s plea, it was agreed he would receive a sentence of four years in state prison. Defendant was sentenced in accordance with the plea agreement.
Defendant filed a timely appeal.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. 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. We have undertaken an independent examination of the entire record and note one irregularity. In addition to the charges mentioned previously, the information alleged that defendant had served a prior prison term. (Pen. Code, § 667.5, subd. (b).) Defendant did not admit the prior prison term allegation. Nonetheless, at defendant’s sentencing hearing, and without the presentation of further evidence, the trial court found the prior prison term allegation true. However, the court struck the punishment for the prior prison term allegation, and the allegation is not recorded on the abstract of judgment. As the error appears to be one without adverse repercussions to defendant, we merely note it for the record.
We have found no other arguable error that would result in a disposition more favorable to defendant.
Accordingly, the judgment is affirmed.
We concur: RAYE, Acting P.J., CANTIL-SAKAUYE, J.