People v. Vandiver CA3

Filed 7/22/15 P. v. Vandiver 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C076179
Plaintiff and Respondent, (Super. Ct. No. 13F1404)
v.
WALTER THOMAS VANDIVER,
Defendant and Appellant.
On appeal following a no contest plea to receiving a stolen vehicle with a prior
conviction involving a stolen vehicle (Pen. Code, § 666.5)1 and admission of a prior
strike conviction (§ 1170.12) and two prior prison terms (§ 667.5, subd. (b)),2 defendant
1 Undesignated statutory references are to the Penal Code.
2 In addition to these pleas and admissions in case No. 13F1404, defendant
simultaneously pleaded guilty to grand theft (§ 487), which was reduced to a
misdemeanor in case No. 12F7454, and pleaded no contest to misdemeanor unlawful
resistance of a peace officer (§ 148, subd. (a)(1)) in case No. 12M6712. For each of these
convictions, defendant was sentenced to a concurrent 180-day incarceration.
1
Walter Thomas Vandiver requests this court to correct the abstract of judgment, claiming
it inaccurately reflects the sentence imposed by the trial court.
We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND3
The trial court sentenced defendant to an aggregate term of 10 years, calculated as
follows: the upper term of four years doubled pursuant to the prior strike conviction and
two one-year terms for the prior prison enhancements. The abstract of judgment reflects
defendant was sentenced to eight years in state prison for his receipt of a stolen motor
vehicle in violation of section 666.5 and further explains: “Deft. sentenced per PC
667(b)-(i) or Penal Code 1170.12 (two strikes).” The abstract further indicates that
defendant was sentenced to two additional years for two prior prison terms pursuant to
section 667.5, subdivision (b). On line 9, the abstract reads: “TOTAL TIME IMPOSED
. . . 10 [years].”
A person convicted of violating section 666.5, like defendant, “shall be punished
by imprisonment . . . for two, three, or four years . . . .” (§ 666.5, subd. (a).) However,
pursuant to sections 667, subdivision (e)(1), and 1170.12, subdivision (c)(1), “[i]f a
defendant has one prior serious and/or violent felony conviction [i.e., a strike] . . . that has
been pled and proved, the determinate term or minimum term for an indeterminate term
shall be twice the term otherwise provided as punishment for the current felony
conviction.” Thus, defendant’s term for violating section 666.5, because he was
sentenced pursuant to section 1170.12, is not four years but eight. There is no error in the
abstract of judgment.
The abstract accurately reflects that defendant was sentenced to the upper term for
his violation of section 666.5 and that he was sentenced “per” section 667,
3 We dispense with a recitation of the facts underlying defendant’s convictions because
they are unnecessary to the resolution of the instant appeal.
2
subdivisions (b)-(i), or 1170.12, which would lead to the applicable term of eight years
for that conviction. By using the words in capitalized font, “TOTAL TIME IMPOSED,”
the abstract also correctly reflects the total aggregate term imposed was 10 years,
including the two prison term enhancements. Thus, contrary to defendant’s apparent
concern, there is no reasonable possibility that the abstract of judgment can be
misconstrued as erroneously indicating a total term of 18 years.4 Therefore, we reject
defendant’s contention that the already accurate abstract of judgment requires correction
by this court.5
4 Defendant fears the California Department of Corrections could read the abstract as
indicating defendant was sentenced to a term of eight years and that term must be
doubled to 16 years, plus two years for the prison terms. As we have noted, the upper
term for the offense for which defendant was convicted is four years, and we are
confident prison officials are familiar with the statutory triad. We are equally confident
that prison officials would recognize that an upper-term sentence of eight years without
applying the strike would be an unauthorized sentence.
5 We also note that after this appeal was initiated, defendant wrote a letter “in the spirit
of” People v. Fares (1993) 16 Cal.App.4th 954, 958, to the trial court asking it to correct
the abstract of judgment. For counsel’s edification, both Fares and People v. Clavel
(2002) 103 Cal.App.4th 516, 519, contemplate the use of a formal motion as opposed to
an informal letter to seek correction of errors in an abstract of judgment. Defendant
indicates the trial court denied that request, though there is nothing in the record to verify
that assertion. Thus, defendant’s assertion that the trial court “abused its discretion” in
refusing to correct the error is not properly before us because there is no order denying
such relief. (See Clavel, at p. 519.)
3
DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
4