Opinion
E069709
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. LEWIS CHARLES WIGGINS III, Defendant and Appellant.
Russell S. Babcock, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1700814) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed with directions. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Lewis Charles Wiggins III is serving four years in custody after pleading guilty in the current case to stealing a vehicle valued at more than $950 and in a related case to misusing another person's identifying information. We affirm the judgment with directions to correct the minute order for November 22, 2017, to reflect the correct calculation of the sentence for the current case.
FACTS AND PROCEDURE
On February 28, 2017, defendant stole a 2016 Kia Soul valued at more than $950 and drove it without the owner's permission.
On September 7, 2017, defendant pled guilty in a related case, case No. RIF1701322, to one count of misusing another person's identifying information (Pen. Code, § 530.5, subd. (a)) and admitted a strike prior. The court sentenced defendant to the low term of 16 months, doubled to 32 months for the strike prior.
At the same hearing, defendant pled guilty in the current matter, case No. RIF1700814, to grand theft of a vehicle (Pen. Code, § 487, subd. (d)(1)) and admitted a strike prior. In this case, the court sentenced defendant to one-third the middle term of two years, which is eight months, doubled to one year and four months for the strike prior. This sentence was imposed consecutive to the 32 months in the related case described ante. The sentence imposed in the current matter was consistent with the plea agreement, which set forth the agreed-upon custody term as "1/3 midterm x 2 = 1 year 4 months."
The minute order for September 7, 2017, described the term as "1/3 of the mid term of 2 years for a total of 1 years and 4 months." The minute order did not clearly reflect that one-third of the middle term was eight months, which was then doubled for the strike prior.
The felony abstract of judgment, filed September 8, 2017, was also inaccurate. This document also failed to indicate that the sentence of one year and four months was calculated by taking one third of the middle term of two years, or eight months, and doubling it for the strike prior. In addition, the document incorrectly stated that the sentence would run concurrent with the sentence in the companion case, rather than consecutive.
On November 22, 2017, the Department of Corrections and Rehabilitation filed a letter pointing out the above inconsistencies, asking the court to determine whether any corrections are required, and requesting a certified copy of any minute order or modified abstract of judgment.
The minute order for the ex parte hearing held on November 22, 2017, indicates the court vacated the sentence and modified it, incorrectly, as follows: "As to Count 1, the Court imposes 1/3 the mid term of 4 years for a total of 1 years and 4 months." The court did change the sentence to run consecutive to the companion case.
However, the amended felony abstract of judgment correctly indicated the sentence of one year and four months was calculated by taking one-third of the middle term and doubling it for the strike prior, and that it would be consecutive to the sentence for the companion case.
On December 20, 2017, defendant filed a handwritten appeal. Defendant argued that his sentence in the current matter should have been eight months, rather than one year four months. On January 2, 2018, appellate counsel filed a second notice of appeal, indicating defendant appealed from an order after judgment, specifically "resentencing hearing after CDCR letter."
DISCUSSION
After 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 to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and are satisfied that no arguable issues exist. However, as noted ante, the minute order from November 22, 2017, erroneously states, "As to Count 1, the Court imposes 1/3 the mid term of 4 years for a total of 1 years and 4 months." This needs to be corrected to reflect, as does the amended felony abstract of judgment, that the court imposed one-third the middle term of two years, or eight months, which was then doubled for defendant's strike prior, for a sentence on this count of one year four months, to run consecutive to the sentence in the companion case.
DISPOSITION
The court clerk is directed to amend the minute order of the ex parte hearing on November 22, 2017, to reflect that defendant was sentenced to one-third the middle term of two years, or eight months, which was then doubled to one year four months for the strike prior. The clerk is also directed to send a certified copy of the corrected minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.