People v. Rendon CA2/3 ( 2016 )

Filed 2/17/16 P. v. Rendon CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B259663
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA133176
v.
ALEX ROBERT RENDON, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert J. Higa, Judge. Affirmed with directions.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Following a jury trial, defendant Alex Robert Rendon, Jr. was convicted of
assault with a deadly weapon and sentenced to 15 years in prison. We direct the trial
court to correct the abstract of judgment to reflect the oral pronouncement of sentence.
In all other respects, we affirm.
PROCEDURAL BACKGROUND
By information filed April 11, 2014, defendant was charged with two crimes
related to the beating of Francisco Orlando Sanchez. Count 1 charged defendant with
attempted first-degree murder (Pen. Code,1 § 664/187, subd. (a)), and alleged defendant
personally used a deadly weapon—a pipe (§ 12022, subd. (b)(1)). Court 2 charged
defendant with assault with a deadly weapon (§ 245, subd. (a)(1)), and alleged
defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The
information also alleged one strike prior (§ 667, subds. (b)–(i), § 1170.12,
subds. (a)--(d)), one serious felony prior (§ 667, subd. (a)(1)), and four prison priors
(§ 667.5, subd. (b)).
Defendant pled not guilty and denied the allegations. The trial court bifurcated
trial on the prior-conviction allegations. After a trial in which defendant testified in his
own defense, a jury found defendant guilty of count 2 (§ 245, subd. (a)(1)) and found its
related great bodily injury allegation true (§ 12022.7, subd. (a)). The jury could not
reach a verdict on count 1. After the jury was excused, the court dismissed count 1.
Defendant waived jury trial on the prior-conviction allegations. After a court
trial, the court found three prior convictions true. The court determined the prosecution
had not presented evidence to support the fourth conviction, and found that allegation
not true.
The court denied defendant’s motion to dismiss the strike priors, and sentenced
him to 15 years. The court selected count 2 (§ 245, subd. (a)(1)) as the base term, and
sentenced defendant to six years (the middle term of three years, doubled for the strike
1
All undesignated statutory references are to the Penal Code.
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prior). The court added five years for the serious felony prior (§ 667, subd. (a)),
three years for the great bodily injury enhancement (§ 12022.7, subd. (a)), and one year
for the prison prior (§ 667.5, subd. (b)), to run consecutive. The court struck the
remaining prison prior.
Defendant filed a timely notice of appeal and we appointed appellate counsel to
represent him.
FACTUAL BACKGROUND
At 3:00 a.m. on December 18, 2013, Francisco Orlando Sanchez and his wife,
Elisa Moran de Sanchez (Moran), were watching television in their living room when
they heard a knock at the front door. Sanchez looked through the window, and saw
defendant; defendant knocked on other doors on the street, and then returned to
Sanchez’s home. Thinking defendant might need help, Sanchez walked out to his front
stoop. Without warning, defendant grabbed Sanchez by the shirt and dragged him to the
ground.
Defendant pulled a metal pipe from behind his back and used it to beat Sanchez
about the head and arms. Eventually, Sanchez gained control of the pipe; defendant
then beat Sanchez with his fists. Meanwhile, Moran called 911. The beating continued
until the police arrived. Defendant was taken into custody without incident. Sanchez
suffered extensive injuries, including bruises to the arms, legs, elbows, and knees;
a gash to the head; and a broken arm and finger. Defendant suffered minor injuries.
At the hospital, Sanchez told authorities that the second time defendant knocked,
Sanchez opened the door and threatened to call the police if the knocking did not stop.
Defendant confirmed this account, and said he “took the pipe away” from Sanchez, and
wielded it in self-defense to keep Sanchez on the ground. Although defendant was able
to answer routine booking questions, he appeared to be under the influence.
Defendant testified in his own defense as follows. Defendant was a long-time
methamphetamine addict, and used enough methamphetamine to keep him awake for
days. At the time of the beating, defendant had been awake for nearly a week. That
night, he was in the neighborhood looking for his girlfriend. After he knocked on a few
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doors, a man came out and told him to leave. Defendant testified that he was on the
second floor of a nearby apartment building, approximately 30 yards away, “looking
from above” at this man when the man said he would have someone “remove”
defendant from the area. Defendant came down the stairs, saw the man run, and then
“got in an argument in the front of the apartment with him.” Defendant and the man
fought. Though the man brought the pipe to the fight, defendant gained control of it,
and used it to hit the man and stop the man from kicking him. Defendant was scared;
he was not trying to kill the man.
Forensic psychiatrist Jack Rothberg interviewed defendant, and reviewed the
police reports and medical records in the case. Dr. Rothberg testified that defendant was
“in a psychotic state” and likely “under the influence of methamphetamine” at the time
of the beating.
DISCUSSION
On October 14, 2015, defendant’s appellate counsel filed a brief in which she
raised no issues and asked us to review the record independently. (People v. Wende
(1979) 25 Cal.3d 436.) Later that day, we notified defendant that his counsel had failed
to find any arguable issues and that he had 30 days to submit by brief or letter any
arguments he wished this court to consider. We have not received a response.
We have examined the entire record, and are satisfied appellate counsel has fully
complied with her responsibilities and no arguable issues exist in the appeal before us.
(Smith v. Robbins (2000) 528 U.S. 259, 278–284; People v. Wende, supra, 25 Cal.3d at
p. 443.) However, our review of the record revealed an error in the abstract of
judgment.
“An abstract of judgment is not the judgment of conviction; it does not control if
different from the trial court’s oral judgment and may not add to or modify the judgment
it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Accordingly, “[c]ourts may correct clerical errors at any time, and appellate courts
(including this one) that have properly assumed jurisdiction of cases” (ibid.), may order
correction of an abstract of judgment that does not accurately reflect the oral
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pronouncement of sentence (id. at pp. 185–188). The abstract of judgment in this case
is inaccurate. The sentencing court imposed six years for count 2—the middle term of
three years, doubled for the strike prior—but the abstract of judgment indicates
defendant was sentenced to three years. We therefore direct the court to correct the
abstract of judgment and forward a copy of the corrected abstract to the Department of
Corrections and Rehabilitation.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of
judgment to conform to the oral pronouncement of sentence and forward a copy of the
corrected abstract to the California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
JONES, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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