People v. Smith CA3 ( 2015 )

Filed 7/16/15 P. v. Smith 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C076352
Plaintiff and Respondent, (Super. Ct. No. 11F00125)
v.
GRANVILLE WILLIAM SMITH,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende).
Having reviewed the record as required by Wende, we affirm the judgment. However,
we have identified an entry on the abstract that must be corrected.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 124.)
FACTUAL AND PROCEDURAL BACKGROUND
On December 10, 2010, defendant Granville William Smith entered a credit union
and approached teller Kelly Kulesza. He gave her a note demanding money. Out of fear,
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Kulesza gave defendant money from her station. Defendant fled with the money. On
January 4, 2011, defendant entered a bank and approached teller Bonnie Hall. He gave
her a note demanding money and showed her the gun he had inside his jacket. Hall gave
defendant money from the bank. Defendant fled the scene and was later apprehended.
A complaint deemed an information charged defendant with six counts of second
degree robbery (Pen. Code, § 211--counts 1 through 6),1 and one count of being an ex-
felon in possession of a firearm (§ 12021, subd. (a)(1)--count 7). As to counts 5 and 6 it
was also alleged defendant personally used a firearm. (§ 12022.53, subd. (b).) The
information also alleged defendant had a prior strike conviction. (§ 1192.7, subd. (c).)
Defendant entered a plea of no contest to two counts of robbery, counts 2 and 6,
admitted he had personally used a firearm, and admitted he had a prior serious felony
conviction. The trial court sentenced defendant to an aggregate term of 22 years in state
prison. The trial court awarded defendant 1,152 days of actual presentence custody
credit, and ordered defendant to pay a $4,400 restitution fund fine (§ 1202.4), direct
victim restitution of $4,400 to SAFE Credit Union, $2,383 to Big Valley Federal Credit
Union, $427 to California Community Credit Union, $882 to Heritage Community Credit
Union, $4,606 to First Bank, $1,494 to Kulesza, a $287.78 main jail booking fee (Gov.
Code, § 29550.2), a $59.23 main jail classification fee (Gov. Code, § 29550.2), a $10
crime prevention program fine (§ 1202.5), an $80 court operation assessment fine
(§ 1465.8), and a court facility fee of $60 (Gov. Code, § 70373). The remaining counts
were dismissed with a Harvey2 waiver.
Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)
1 Undesignated statutory references are to the Penal Code at the time of the charged
offenses.
2 People v. Harvey (1979) 25 Cal. 3d 754.
2
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. (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.
DISCUSSION
Defendant filed a supplemental brief requesting we “look at” counsel’s repeated
requests to be removed from the case, defendant’s pre-plea Marsden3 motion, his claim
that counsel did not conduct interviews prior to trial and did not inform him of other plea
deals or offers, that the restitution order was excessive, “especialy [sic] if cases were
dropped/dismissed,” and he was not given his Boykin/Tahl4 rights at the time of
sentencing.
As to defendant’s claims regarding counsel, the Marsden motions and counsel’s
requests to be removed from the case, those claims are forfeited by his plea. (People v.
Lovings (2004) 118 Cal. App. 4th 1305; People v. Lobaugh (1987) 188 Cal. App. 3d 780.)
As to the claim regarding his Boykin/Tahl rights, the record reflects defendant was
properly advised of his Boykin/Tahl rights at the time of his plea. Lastly, defendant
agreed, as part of the plea that the court could consider the dismissed charges in deciding
his sentence, “including the issue of restitution on those charges.” Accordingly,
defendant waived the complaint on appeal as to direct victim restitution for dismissed
charges.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
3 People v. Marsden (1970) 2 Cal. 3d 118 (Marsden).
4 Boykin v. Alabama (1969) 395 U.S. 238 [23 L. Ed. 2d 274] (Boykin); In re Tahl (1969)
1 Cal. 3d 122 (Tahl).
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However, we have noticed entries on the abstract of judgment that must be
corrected. As noted, the court orally imposed an aggregate sentence of 22 years. While
the entries on the abstract correctly note the sentence orally imposed for the charges and
enhancement (10 years on Count 6, 2 years on Count 2, and 10 years for the firearm
enhancement), the entry for “Total Time” on the abstract is 10 years. We have also noted
that the statute for the firearm enhancement is listed as “12022.52(b)PC.” It should be
section “12022.53(b)PC.” We order correction of these entries.
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect a total
sentence of 22 years and to reflect that the firearm enhancement for which defendant was
sentenced is section 12022.53, subdivision (b). The court is further directed to forward a
certified copy of the corrected abstract to the California Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
MURRAY , J.
We concur:
RAYE , P. J.
HULL , J.
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