People v. Winger CA1/3 ( 2014 )


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  • Filed 9/30/14 P. v. Winger CA1/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,
    Plaintiff and Respondent,
    A141446
    v.
    JOSHUA ISAIAH WINGER,                                              (Mendocino County
    Super. Ct. No.
    Defendant and Appellant.                                SCUKCRCR137549012)
    Joshua Isaiah Winger (appellant) appeals from a judgment entered after he pleaded
    no contest to one felony count of receiving stolen property (Pen. Code, § 496, subd. (a)1)
    and the trial court sentenced him to 16 months in county jail. Appellant’s counsel has
    filed a brief pursuant to People v. Wende (1979) 
    25 Cal. 3d 436
    and requests that we
    conduct an independent review of the record. Appellant was informed of his right to file
    a supplemental brief and did not do so. Having independently reviewed the record, we
    conclude there are no issues that require further briefing, and shall affirm the judgment.
    FACTUAL AND PROCEDURAL BACKGROUND
    On January 2, 2014, a criminal complaint was filed charging appellant with one
    felony count of receiving stolen property (§ 496, subd. (a)) and alleging one prior prison
    term enhancement (§ 667.5, subd. (b)). Appellant entered a no contest plea to count one
    with the understanding that he would receive a low-term county jail commitment (§ 1170,
    subd. (h)(2)) of 16 months and dismissal of the prior prison term enhancement. The
    1
    All statutory references are to the Penal Code.
    1
    prosecutor stated the following factual basis for appellant’s no contest plea: “On the date
    alleged in the complaint, in the county of Mendocino, the defendant had on his—or
    within his vehicle various items of property that had been stolen, including a
    chainsaw . . . .” The prosecutor alleged possession of other stolen property, but appellant,
    through counsel, only admitted possession of the chainsaw. When personally asked if he
    admitted possessing a stolen chainsaw, appellant answered: “Apparently. Allegedly
    stolen, but yes, sir.”
    Appellant waived his rights under Boykin/Tahl2 and admitted there was a factual
    basis for his plea. At appellant’s request, the court sentenced appellant immediately to
    the negotiated county jail term of 16 months. The court awarded appellant 112 days of
    presentence credits, comprised of 56 days of custody credits (§ 2933.1) and 56 days of
    conduct credits (§ 4019). The court also imposed a $280 restitution fine (§ 1202.4,
    subd. (b)), a $40 court security fee (§ 1465.8), and a $30 criminal conviction assessment
    (Gov. Code, § 70373). The court suspended imposition of a $280 postrelease community
    supervision fine (PRCS fine) (§ 1202.45). Appellant filed a timely notice of appeal, and
    the trial court denied his request for a certificate of probable cause to challenge the
    validity of his plea.
    On July 29, 2014, appellate counsel sent a letter to the Mendocino County
    Superior Court requesting that the suspended PRCS fine be vacated as an unauthorized
    sentence. Appellate counsel pointed out in the letter: “Although the Court suspended
    imposition of this fine (as required by subdivision (c) of the [section 1202.45]), it appears
    that the statute does not apply to Mr. Winger at all, as his sentence does not include a
    period of parole, postrelease community supervision, or mandatory supervision.” The
    trial court granted the request and amended its minute order and abstract of judgment.
    DISCUSSION
    Appellant’s counsel has filed a brief pursuant to People v. 
    Wende, supra
    ,
    
    25 Cal. 3d 436
    , and asks this court to independently “conduct a review of the entire record
    2
    Boykin v. Alabama (1969) 
    395 U.S. 238
    ; In re Tahl (1969) 
    1 Cal. 3d 122
    .
    2
    to determine whether the record reveals any issues that would, if resolved favorably to
    the appellant, result in reversal or modification of the judgment.” A review of the record
    has disclosed no reasonably arguable appellate issue, and we are satisfied that counsel has
    fully complied with his responsibilities. (People v. 
    Wende, supra
    , 
    25 Cal. 3d 436
    , People
    v. Kelly (2006) 
    40 Cal. 4th 106
    .) There was a factual basis for appellant’s plea, and there
    is no clear and convincing evidence of good cause to allow appellant to withdraw his
    plea. Appellant was adequately represented by counsel at every stage of the proceedings.
    The sentencing error was corrected. There are no issues that require further briefing.
    DISPOSITION
    The judgment is affirmed.
    _________________________
    McGuiness, P.J.
    We concur:
    _________________________
    Pollak, J.
    _________________________
    Siggins, J.
    3
    

Document Info

Docket Number: A141446

Filed Date: 9/30/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014