People v. Whitmer CA3 ( 2024 )

Filed 10/8/24 P. v. Whitmer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yuba)
----
THE PEOPLE, C099658
Plaintiff and Respondent, (Super. Ct. Nos.
CRF12-0000623,
v. CRF13-0000195)
BRAD ALLEN WHITMER,
Defendant and Appellant.
Defendant Brad Allen Whitmer appeals following a resentencing pursuant to Penal
Code section 1172.75.1 Appellate counsel filed a brief under People v. Wende (1979)
25 Cal.3d 436 raising no arguable issues and asking this court to conduct an independent
review of the record. Although not required to independently review the record in these
circumstances (see People v. Delgadillo (2022) 14 Cal.5th 216, 226 (Delgadillo)), we
have done so. Our discretionary review of the postconviction record reveals no arguable
errors favorable to Whitmer. We therefore affirm. We have, however, identified two
clerical errors in the abstract of judgment. We direct the trial court to correct the abstract
1 Undesignated statutory references are to the Penal Code.
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of judgment to delete the two prior prison term enhancements and to include the accurate
number of credits for actual days served.
BACKGROUND
In 2013, in case number CRF12-0000623, a jury found Whitmer guilty of
recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a)), driving a vehicle
without the owner’s consent (Veh. Code, § 10851, subd. (a)), and resisting a peace officer
(§ 148, subd. (a)(1)). Whitmer admitted that he had served two prior prison terms and
that he had a prior strike. Then, in case number CRF13-0000195, Whitmer pleaded no
contest to assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted that he
inflicted great bodily injury on a person other than an accomplice (§ 12022.7, subd. (a))
and that he had suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior
strike.
The trial court sentenced Whitmer to eight years (the upper term doubled due to
the prior strike) for the assault, 16 months (one-third of the middle term doubled due to
the prior strike) each for the evasion conviction and for unlawfully taking a vehicle, a
concurrent term of one year for the misdemeanor offense of resisting a peace officer,
three years for the great bodily injury enhancement, five years for the prior serious felony
enhancement, and one year for each of the two prior prison terms. His aggregate
sentence was 20 years eight months.
In 2022, the Department of Corrections and Rehabilitation identified Whitmer as a
person serving a sentence that includes a prior prison term enhancement. Pursuant to
section 1172.75, the trial court dismissed Whitmer’s one-year terms based on his two
prior prison term enhancements and proceeded to resentence him. Whitmer argued that
the court should impose the lower term for the assault conviction, strike his remaining
enhancements, and dismiss the prior strike.
The trial court reimposed the same sentence on the remaining felony convictions
and enhancements, resulting in an aggregate sentence of 18 years eight months. In
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aggravation, the court found that Whitmer’s prior convictions as an adult were numerous,
that he had served a prior prison term, and that his performance on parole was
unsatisfactory. While acknowledging mitigating factors, the court reimposed the upper
term on the assault conviction “given the significant factors in aggravation.” The court
also denied any motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 to strike Whitmer’s prior strike conviction and declined to dismiss any of the
remaining enhancements. With respect to the prior serious felony enhancement, the court
found that “this particular defendant endangers public safety.” In granting credits for
actual days served, the court determined that Whitmer had served an additional
3,655 days since his prior sentencing.
Whitmer timely appealed.
DISCUSSION
Whitmer’s appointed counsel asks this court to conduct an independent review of
the record to determine whether there are any arguable issues on appeal. (People v.
Wende, supra, 25 Cal.3d 436.) Ordinarily, the Wende procedure applies “to the first
appeal as of right and is compelled by the constitutional right to counsel under the
Fourteenth Amendment of the United States Constitution.” (Delgadillo, supra,
14 Cal.5th at p. 221.) In Delgadillo, our state Supreme Court explained that the Wende
process is not required in an appeal from a trial court’s order denying a petition for
postconviction relief under section 1172.6. (Delgadillo, at pp. 221-226.) Although the
present case concerns postconviction relief under a different statute, the same principles
may apply, given that this was not Whitmer’s first appeal of right.
We nevertheless exercise our discretion to independently review the
postconviction record, as Delgadillo permits. (Delgadillo, supra, 14 Cal.5th at p. 232.)
Having undertaken this review, we find no arguable errors that would result in a
disposition more favorable to Whitmer.
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The abstract of judgment has two clerical errors that warrant correction, however.
First, the abstract indicates that the trial court struck the punishment for the two prior
prison term enhancements under section 667.5, subdivision (b). But section 1172.75,
subdivision (a) declares that prior prison term enhancements under section 667.5,
subdivision (b) are legally invalid in the circumstances present in this case. Those
enhancements should therefore be removed from the abstract of judgment entirely.
Second, under the credits section, the abstract should list the total number of credits
awarded by the trial court for actual days served. Although the abstract references the
court’s order awarding additional credits of 3,655 actual days, the number of credits
listed for actual days served is 336.
DISPOSITION
The judgment is affirmed. The trial court shall correct the abstract of judgment to
remove the two prior prison term enhancements under section 667.5, subdivision (b) and
to state the accurate total number of credits for actual days served. The trial court shall
forward the corrected abstract of judgment to the Department of Corrections and
Rehabilitation.
/s/
FEINBERG, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
RENNER, J.
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