People v. Rios CA4/2

Filed 5/27/21 P. v. Rios CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075173
v. (Super.Ct.No. FSB036912)
JORGE LUIS REYES RIOS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steve Malone and
Arthur A. Harrison, Judges. Affirmed.
Jorge Luis Reyes Rios, in propria persona; and Stephen M. Lathrop, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Jorge Luis Reyes Rios appeals from a postjudgment order
denying his motion to modify the abstract of judgment. Counsel has filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
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(1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of
the record. In addition, defendant has had an opportunity to file a supplemental brief
with this court and has done so. We find no error and affirm the order.
PROCEDURAL HISTORY
On October 28, 2003, a jury found defendant guilty of six counts of robbery (Pen.
Code,1 § 211). The jury also found true that defendant personally used a firearm
(§ 12022.53, subd. (b); counts 1-6); defendant personally and intentionally discharged a
firearm (§ 12022.53, subd. (c); counts 1, 2, 4, & 5); and defendant personally and
intentionally discharged a firearm, which proximately caused great bodily injury
(§ 12022.53, subd. (d); counts 1 & 2).
On December 16, 2003, the trial court sentenced defendant to a total determinate
term of 41 years four months and a total indeterminate term of 50 years to life in prison
as follows: (1) the middle term of three years, plus a consecutive term of 20 years for the
firearm discharge enhancement (§ 12022.53, subd. (c)) on count 4, designated as the
principal term; (2) a consecutive one year, plus 25 years to life for the firearm discharge
causing great bodily injury enhancement (§ 12022.53, subd. (d)) on count 1; (3) a
consecutive one year, plus 25 years to life for the firearm discharge causing great bodily
injury enhancement (§ 12022.53, subd. (d)) on count 2; (4) a consecutive one year, plus
three years four months for the firearm use enhancement (§ 12022.53, subd. (b)) on
count 3; (5) a consecutive one year, plus six years eight months for the firearm discharge
1 All future statutory references are to the Penal Code unless otherwise stated.
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enhancement (§ 12022.53, subd. (c)) on count 5; and (6) a consecutive one year, plus
three years four months for the firearm use enhancement (§ 12022.53, subd. (b)) on
count 6.2
Defendant subsequently appealed. On March 28, 2005, we affirmed the judgment
and remanded the matter for resentencing “consistent with the views expressed in this
opinion.” (People v. Rios (Mar. 28, 2005, E034982) [nonpub. opn.] at p. 6 (Rios I).)
With respect to the sentence, we explained: “Accordingly, we conclude as to counts 1
and 2, where an enhancement has been found under section 12022.53, subdivision (d),
any remaining enhancements found true as to those counts under section 12022.53 must
be stayed under section 12022.53, subdivision (f). Similarly, where allegations under
section 12022.53, subdivisions (b) and (c) are found true to the remaining counts, the
court should impose the section 12022.53, subdivision (c) enhancement and stay the
finding under section 12022.53, subdivision (b). Furthermore, the trial court should
strike the section 12022.5 enhancement attached to each count.” (Rios I, at p. 6.)
Following remand for resentencing, on July 20, 2006, defendant was sentenced to
a total term of 84 years eight months as follows: (1) as to counts 1 and 2, the court stayed
the lesser section 12022.53, subdivisions (b) and (c) firearm enhancements; (2) as to
counts 3 through 6, the court stayed the section 12022.53, subdivision (b) firearm
2 The clerk’s minute order of the December 16, 2003 sentencing hearing
incorrectly indicates imposition of sentence for the firearm enhancement allegations were
stayed on counts 1, 2, 4, and 5 pursuant to section 1170.1, subdivision (f). The minute
order also erroneously states the firearm enhancement allegations in counts 1 through 5
were stricken.
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enhancements; and (3) as to all counts, the court struck the section 12022.5 firearm
enhancement. As to count 4, the minute order states, “[p]ursuant to PC1170.1(f),
imposition of sentence is stayed as to [a]llegation [ ] [section] 12022.53[,
subdivision (b)].”
On August 15, 2019, following a request by the California Department of
Corrections and Rehabilitation (CDCR) to review the abstract of judgment issued
following resentencing, the trial court filed a corrected abstract of judgment. In relevant
part, the corrected abstract of judgment reflects that on count 4 the court imposed a
middle term of three years (as it originally had in December 2003), plus a consecutive
term of 20 years for the firearm discharge enhancement allegation pursuant to
section 12022.53, subdivision (c); the court stayed the lesser firearm use enhancement
under section 12022.53, subdivision (b).
On October 9, 2019, following defendant’s “Motion to Strike 12022.53
Enhancements[,]” the trial court issued the following order: “Defendant’s request for
modification of abstract is denied. The section PC 12022.53(c) enhancement has
previously been ordered stayed as reflected in the 8/6/2006 abstract showing an (S) next
to the entry.”
On January 10, 2020, defendant filed a “Motion to Amended [sic] Abstract of
Judgment, Clerical Error,” dated December 30, 2019. Defendant requested the abstract
of judgment, filed August 15, 2019, be amended to correctly reflect that the 20-year term
for the firearm discharge enhancement (§ 12022.53, subd. (c)) on count 4 was stayed.
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On January 27, 2020, the trial court denied the request, and the following day
issued a written decision. In its written decision, the court explained the procedural
background of the case and the confusion concerning the sentence on count 4. The court
concluded that it “has reviewed [defendant’s] letter dated December 30, 2019. As
explained below, the abstract of judgment filed August 15, 2019 is correct regarding the
imposition of sentence of 20 years as to Count 4 for Penal Code §12022.53 (c).”
On June 1, 2020, defendant filed a notice of appeal from the trial court’s
postjudgment order. Following a request for direction by Appellate Defenders, Inc.
(ADI), concerning whether to appoint counsel for defendant due to a possible
appealability issue, on July 8, 2020, this court issued an order directing ADI “to file the
paperwork for appointment of counsel for [defendant].”
DISCUSSION
As previously noted, counsel has filed a brief under the authority of Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, a
summary of the procedural background and potential arguable issue, and requesting this
court to conduct an independent review of the record. Counsel has raised the issue of
whether the amended abstract of judgment correctly reflects the judgment.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. In his supplemental brief, defendant raises various unsupported issues,
claiming (1) his due process rights were violated when the court held the restitution
hearing in his absence; (2) his sentence is illegal and unauthorized; (3) the court erred in
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imposing the section 12022.53, subdivision (c) firearm enhancement as to count 4
following the letter from CDCR; (4) the court’s January 2020 decision denying his
request to modify the abstract of judgment does not reflect the October 9, 2019 minute
order; and (5) remand for resentencing is warranted under Senate Bill No. 620.
Defendant’s case became final in 2006, and his abstract of judgment was corrected
in 2019. This appeal comes from an order denying his request to correct that abstract of
judgment. We have jurisdiction over the appeal as “[c]ourts may correct clerical errors at
any time,” and appellate courts may assume jurisdiction over appeals from rulings on
claims of a clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185; see § 1237,
subd. (b).)
Defendant’s counsel raises no arguments. However, as noted, we allowed
defendant to personally file a supplemental brief, and in it he renews his challenge to the
order appealed. A review of the record indicates the amended abstract of judgment
correctly reflects the judgment of the trial court; there was no clerical error. And because
the discrepancy in the July 20, 2006 abstract of judgment (following remand for
resentencing) was corrected, the motion to amend the abstract of judgment was properly
denied. That’s the end of this appeal.
Defendant raises four additional issues, but the most we have jurisdiction to do in
this long-final case is reverse the order appealed from and thus correct a clerical error.
“ ‘Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment
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or order appealed from.’ [Citation.] We have no jurisdiction over an order not
mentioned in the notice of appeal.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.)
Having examined the record from the order appealed from, we are satisfied that
defendant’s counsel has fully complied with his responsibility that no arguable appellate
issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40
Cal.4th 106, 110.)
DISPOSITION
The order denying defendant’s motion to amend the abstract of judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
SLOUGH
J.
RAPHAEL
J.
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