People v. Wilcox CA3 ( 2022 )

Filed 12/19/22 P. v. Wilcox 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C096143
Plaintiff and Respondent, (Super. Ct. No. 20CF03721)
v.
MICHAEL WILCOX,
Defendant and Appellant.
THE PEOPLE, C096227
Plaintiff and Respondent, (Super. Ct. No. 22CF00312)
v.
MICHAEL WILCOX,
Defendant and Appellant.
Appointed counsel for defendant Michael Wilcox asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).)
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We requested supplemental briefing as to whether defendant’s upper term
sentence was imposed in a manner that complies with Penal Code section 1170,
subdivision (b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.). Finding no
arguable error that would result in a disposition more favorable to defendant, we will
affirm the judgment. We have, however, found a clerical error in the abstract of
judgment which we will direct the trial court to correct.
BACKGROUND
While on probation defendant pleaded no contest in case No. 20CF03721 (case
No. 721) to felony possession of a controlled substance for sale. (Health & Saf. Code,
§ 11378.)1 The trial court terminated defendant’s prior grant of probation, made an
unusual case finding, and issued a new grant of probation.
Shortly thereafter defendant reoffended and pleaded no contest in case
No. 22CF00312 (case No. 312) to possessing a controlled substance for sale. (Health &
Saf. Code, § 11378.)
In March 2022, the trial court sentenced defendant to the upper term of three years
in prison for case No. 312 and a consecutive one-third middle term of eight months in
prison for case No. 721. The probation officer’s report did not set out defendant’s full
criminal history but stated defendant “has been consistently committing new crimes since
2004 and was on probation less than five days when he committed the instant offense.”
In selecting the upper term sentence, the court noted the following circumstances in
aggravation: “The defendant’s prior convictions as an adult or sustained petitions as a
juvenile are numerous or of increasing seriousness. Defendant has served prior prison
terms; the defendant was on probation for – well, five days at the time of this offense in
1 Defendant also pleaded no contest in case No. 21CM01752 to misdemeanor possession
of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).)
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which he was found with an ounce of methamphetamine; defendant’s prior performance
on probation was unsatisfactory.” The court found no factors in mitigation.
The court then ordered defendant to pay numerous fines and fees and granted
defendant a total of 140 days’ credit for time served.
Defendant timely appealed both cases. On our own motion, we consolidated
defendant’s appeals for purposes of oral argument and decision.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days have elapsed, and defendant has not filed a supplemental brief.
We requested supplemental briefing as to whether defendant’s upper term
sentence was imposed in compliance with newly amended guidelines for triad sentencing.
Defendant acknowledges he was sentenced after the effective date of the statute, the trial
court was aware of the new legislation, and trial counsel did not object to the imposition
of the upper term sentence. Thus, defendant forfeited any claim of sentencing error.
Having undertaken an examination of the entire record pursuant to Wende, we find
no arguable error that would result in a disposition more favorable to defendant.
However, we have found a clerical error in the abstract of judgment that must be
corrected. The abstract of judgment incorrectly indicates defendant was convicted in
case No. 312 of a violation of Health and Safety Code section 11379, subdivision (a).
The transcript of the plea colloquy, the minutes of that proceeding, defendant’s plea form,
and the court’s oral pronouncement of judgment all reflect that defendant was convicted
of a violation of Health and Safety Code section 11378. (See People v. Mitchell (2001)
26 Cal.4th 181, 185-186.)
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DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected
abstract of judgment reflecting defendant’s conviction in case No. 312 was based on
Health and Safety Code section 11378. The court shall forward the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MAURO, J.
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