People v. Gaye CA2/8 ( 2015 )

Filed 10/20/15 P. v. Gaye CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B262372
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA098021)
v.
HOWARD GAYE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
James D. Otto, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant
and Appellant.
No response by Plaintiff and Respondent.
__________________________
On January 15, 2014, Howard Gaye was arrested after he was caught
leaving a Wal-Mart in Long Beach with nearly $300 in stolen merchandise. On
January 17, 2014, Gaye was charged with one count of second degree burglary
(Pen. Code, § 459),1 along with allegations that he had suffered the following prior
convictions for purposes of the one-year sentence enhancement provided by
section 667.5, subdivision (b): Three for petty theft with a prior conviction
(§ 666); three for burglary; and one for the transportation or sale of drugs (Health
& Saf. Code, § 11352).
Gaye, who was represented by a public defender, pleaded no contest to the
burglary charge on February 4, 2014, and admitted the truth of the prior conviction
allegations. There is no reporter’s transcript from that hearing, but the trial court’s
minute order specifies that Gaye received all the necessary advisements
concerning the rights he was waiving. He was sentenced to five years in county
jail, consisting of three years for the burglary conviction and two years under
section 667.5, subdivision (b).
In December 2014 Gaye filed an application for resentencing under
section 1170.18, which the voters had adopted as Proposition 47 and which took
effect one month earlier. Because Gaye’s shoplifting offense had been reclassified
as a misdemeanor, the new law allowed him to seek a reduced misdemeanor
sentence. The trial court granted that motion in January 2015 and resentenced
Gaye to serve one year in county jail followed by one year on parole. (§ 1170.18,
subd. (d).)
Gaye filed a notice of appeal. On June 17, 2015, his appointed counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which
no issues were raised. The brief included a declaration from counsel that he had
reviewed the record and had sent Gaye a letter advising him that such a brief
would be filed and that he could file a supplemental brief if he chose to. Two days
1
All further undesignated section references are to the Penal Code.
2
later, this court sent Gaye a letter advising him that a Wende brief had been filed
and that he had 30 days to submit a brief raising any issues he wanted us to
consider. He did not file a supplemental brief.
We have examined the entire record and are satisfied that appellant’s
attorney has fully complied with his responsibilities and that no arguable issues
exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
3