People v. Barnard CA3 ( 2014 )

Filed 10/14/14 P. v. Barnard CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Glenn)
----
THE PEOPLE, C076116
Plaintiff and Respondent, (Super. Ct. No. 12NCR09545)
v.
LAWRENCE LEE BARNARD,
Defendant and Appellant.
This is an appeal pursuant to People v. Wende (1979) 25 Cal. 3d 436.
On July 20, 2012, officers executed a search warrant on the house belonging to
defendant Lawrence Lee Barnard and found 28 unspent rounds of ammunition and an
unspent 12-gauge shotgun shell. In 1987, defendant was convicted of first degree
burglary.
Defendant entered a negotiated plea of no contest to unlawful possession of
ammunition (Pen. Code, § 30305, subd. (a)(1)) and admitted a strike prior (Pen. Code, §§
667, subd. (b)-(i), 1170.12) in exchange for dismissal of the remaining counts.
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The court sentenced defendant to state prison for six years, that is, the upper term
of three years, doubled for the strike prior.
Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code,
§ 1237.5.)
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. (People v. 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 elapsed, and
we received no communication from defendant.
We note an error in judgment. Defendant entered his plea in exchange for
dismissal of the remaining counts. The prosecutor never moved to dismiss and the trial
court never dismissed the remaining counts. Since defendant entered his negotiated plea
in exchange for dismissal of the remaining counts, he is entitled to his bargain. In the
interests of judicial economy, we will order the remaining counts dismissed. Any party
wishing to address this issue may petition for rehearing. (Gov. Code, § 68081.)
We also note errors in preparation of the abstract of judgment. At sentencing, the
trial court imposed an $1,800 restitution fine and a parole revocation fine in the same
amount and did not impose any other fine. The abstract as well as the sentencing minutes
reflect the restitution/parole fines and, in addition, a fine in the amount of $200, which
the probation report had recommended as well. The trial court did not follow the
recommendation of the probation officer and impose the additional $200 fine. Because
the abstract does not reflect the oral pronouncement of judgment, we will order the
abstract corrected, deleting the $200 fine. (People v. Mitchell (2001) 26 Cal. 4th 181,
185.)
The abstract reflects that defendant was sentenced as a two-strike offender, having
checked the appropriate box on the form. But the abstract also lists defendant’s strike
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prior as an enhancement. The “Three Strikes” law “articulates an alternative sentencing
scheme for the current offense rather than an enhancement.” (People v. Superior Court
(Romero) (1996) 13 Cal. 4th 497, 527; People v. Sipe (1995) 36 Cal. App. 4th 468, 485.)
We will order the abstract corrected, deleting the strike prior as an enhancement and
leaving the box checked to reflect that defendant was sentenced as a two-strike offender,
and indicating the time imposed for count II is six years.
Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified, dismissing count I (possession of methamphetamine),
count III (possession of drug paraphernalia, a misdemeanor), and count IV (falsification
of a registration tab, a misdemeanor). The trial court is directed to prepare a corrected
abstract of judgment, deleting the $200 fine and the reference to defendant’s strike prior
as an enhancement, to indicate the time imposed for count II is six years, and to forward a
certified copy of the corrected abstract of judgment to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
NICHOLSON , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
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