People v. Harris CA4/1 ( 2014 )

Filed 9/29/14 P. v. Harris CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066166
Plaintiff and Respondent,
v. (Super. Ct. No. FV1901066)
RICHARD MONROE HARRIS,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Bernardino, Michael A. Smith,
Judge. Affirmed with directions.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
In December 2009, a jury found Richard Monroe Harris guilty of assault with a
deadly weapon (Pen. Code,1 § 245, subd. (a)(1), a serious felony (§§ 1192.7,
1 All further statutory references are to the Penal Code.
subd. (c)(31), 1170.126, subd. (e)(1)). In a bifurcated proceeding, the court found true
allegations of a serious felony prior conviction (§ 667, subd. (a)(1)), four prior prison
terms (§ 667.5, subd. (b)) and three prior strike convictions (§ 667, subds. (b)-(i)). In
2010, the court sentenced Harris to prison for 25 years to life plus eight years: 25 years
to life, with the possibility of parole, for assault with a deadly weapon; five years for the
serious felony prior; and one year each for three of the prison priors.2 In 2011, the court
dismissed one of the strikes. In 2014, Harris filed petitions for resentencing
(§ 1170.126). The court denied the petitions. Harris appeals. We affirm.
BACKGROUND
In May 2009, Harris assaulted the victim with a knife, stabbing him in the arm, the
thigh, the back and twice in the forehead. With the second stab in the forehead, the
knife's blade penetrated the victim's skull, separated from the handle and remained
embedded in the victim's forehead until later removed. The stab in the back punctured
the victim's lung.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and
proceedings below. Counsel presents no argument for reversal, but asks this court to
2 The court stayed execution of a one-year sentence for a prison prior in case
No. SCE278028. "Once the prior prison term is found true within the meaning of section
667.5[, subdivision ](b), the trial court may not stay the one-year enhancement, which is
mandatory unless stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241.)
Because the conviction in case No. SCE278028 also gave rise to the serious felony prior
for which Harris received a five-year sentence, this prison prior should have been
stricken. (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145, 1150, 1153.) We direct the
trial court to amend the abstract of judgment accordingly.
review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436(Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel
mentions as possible but not arguable issues (1) whether the denial of the section
1170.126 petition is an appealable order and (2) whether the court erred by denying the
petition.
We granted Harris permission to file a brief on his own behalf. He has not
responded. A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders,
supra, 386 U.S. 738, including the possible issues listed pursuant to Anders, has disclosed
no reasonably arguable appellate issues. Harris has been competently represented by
counsel on this appeal.
DISPOSITION
The orders are affirmed. The trial court is directed to (1) amend the abstract of
judgment to reflect a stricken, rather a stayed, prison prior in case No. SCE278028; and
(2) forward the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.