People v. Winger CA1/3

Filed 9/30/14 P. v. Winger CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A141446
v.
JOSHUA ISAIAH WINGER, (Mendocino County
Super. Ct. No.
Defendant and Appellant. SCUKCRCR137549012)
Joshua Isaiah Winger (appellant) appeals from a judgment entered after he pleaded
no contest to one felony count of receiving stolen property (Pen. Code, § 496, subd. (a)1)
and the trial court sentenced him to 16 months in county jail. Appellant’s counsel has
filed a brief pursuant to People v. Wende (1979) 25 Cal. 3d 436 and requests that we
conduct an independent review of the record. Appellant was informed of his right to file
a supplemental brief and did not do so. Having independently reviewed the record, we
conclude there are no issues that require further briefing, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 2, 2014, a criminal complaint was filed charging appellant with one
felony count of receiving stolen property (§ 496, subd. (a)) and alleging one prior prison
term enhancement (§ 667.5, subd. (b)). Appellant entered a no contest plea to count one
with the understanding that he would receive a low-term county jail commitment (§ 1170,
subd. (h)(2)) of 16 months and dismissal of the prior prison term enhancement. The
1
All statutory references are to the Penal Code.
1
prosecutor stated the following factual basis for appellant’s no contest plea: “On the date
alleged in the complaint, in the county of Mendocino, the defendant had on his—or
within his vehicle various items of property that had been stolen, including a
chainsaw . . . .” The prosecutor alleged possession of other stolen property, but appellant,
through counsel, only admitted possession of the chainsaw. When personally asked if he
admitted possessing a stolen chainsaw, appellant answered: “Apparently. Allegedly
stolen, but yes, sir.”
Appellant waived his rights under Boykin/Tahl2 and admitted there was a factual
basis for his plea. At appellant’s request, the court sentenced appellant immediately to
the negotiated county jail term of 16 months. The court awarded appellant 112 days of
presentence credits, comprised of 56 days of custody credits (§ 2933.1) and 56 days of
conduct credits (§ 4019). The court also imposed a $280 restitution fine (§ 1202.4,
subd. (b)), a $40 court security fee (§ 1465.8), and a $30 criminal conviction assessment
(Gov. Code, § 70373). The court suspended imposition of a $280 postrelease community
supervision fine (PRCS fine) (§ 1202.45). Appellant filed a timely notice of appeal, and
the trial court denied his request for a certificate of probable cause to challenge the
validity of his plea.
On July 29, 2014, appellate counsel sent a letter to the Mendocino County
Superior Court requesting that the suspended PRCS fine be vacated as an unauthorized
sentence. Appellate counsel pointed out in the letter: “Although the Court suspended
imposition of this fine (as required by subdivision (c) of the [section 1202.45]), it appears
that the statute does not apply to Mr. Winger at all, as his sentence does not include a
period of parole, postrelease community supervision, or mandatory supervision.” The
trial court granted the request and amended its minute order and abstract of judgment.
DISCUSSION
Appellant’s counsel has filed a brief pursuant to People v. Wende, supra,
25 Cal. 3d 436, and asks this court to independently “conduct a review of the entire record
2
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal. 3d 122.
2
to determine whether the record reveals any issues that would, if resolved favorably to
the appellant, result in reversal or modification of the judgment.” A review of the record
has disclosed no reasonably arguable appellate issue, and we are satisfied that counsel has
fully complied with his responsibilities. (People v. Wende, supra, 25 Cal. 3d 436, People
v. Kelly (2006) 40 Cal. 4th 106.) There was a factual basis for appellant’s plea, and there
is no clear and convincing evidence of good cause to allow appellant to withdraw his
plea. Appellant was adequately represented by counsel at every stage of the proceedings.
The sentencing error was corrected. There are no issues that require further briefing.
DISPOSITION
The judgment is affirmed.
_________________________
McGuiness, P.J.
We concur:
_________________________
Pollak, J.
_________________________
Siggins, J.
3