People v. Vice CA3 ( 2021 )

Filed 1/11/21 P. v. Vice 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE, C091281
Plaintiff and Respondent, (Super. Ct. No. 19FE014904)
v.
HERBERT CLARENCE VICE,
Defendant and Appellant.
Appointed counsel for defendant Herbert Clarence Vice has filed an opening brief
setting forth the facts of the case and asking this court to review the record to determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436(Wende).) After reviewing the entire record, we modify the judgment and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 17, 2019, police dispatched to a “family fight” found defendant’s wife
in a “distress[ed]” state and bleeding from several injuries on her face. She told police
that defendant struck her in the face.
1
Defendant’s wife’s teenage grandson was present and told police that he saw
defendant strike his grandmother’s face at least three times. A fireman who responded to
the scene testified that the victim told him that “her husband” “struck [her] several
times.”
At trial, defendant’s wife testified that while she and defendant were arguing, she
lost her balance and hit her head on furniture. She insisted defendant “didn’t put one
hand on [her], if that’s what the cops [were] saying.” The victim’s grandson testified that
he loved defendant, had “a hard time remembering things,” did not remember defendant
punching his grandmother, and did not remember telling police that defendant struck his
grandmother.
A November 2019 amended information alleged defendant inflicted corporal
injury upon his spouse resulting in a traumatic condition. (Pen. Code, § 273.5, subd.
(a).)1 The information also alleged that appellant had two prior strike convictions.
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)
In December 2019, a jury found defendant guilty as charged. The trial court found
true the prior conviction allegations (defendant having waived his right to a jury trial on
the prior convictions).
At a January 2020 sentencing hearing, the trial court denied defendant’s motion,
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike his two
prior strike convictions, explaining that defendant fell “well within the spirit of the Three
Strikes scheme,” as defendant “ha[d] engaged in nearly constant criminality from 1989
through 2001, most of it violent,” and “the absence of convictions from 2001 to 2018”
was explained by a lengthy confinement for a 2001 conviction.
1 Undesignated statutory references are to the Penal Code.
2
Under oath, defendant addressed the trial court directly, insisting he was innocent
of the charge.
The trial court concluded the upper term of eight years (four years doubled for the
strike) was appropriate in light of, inter alia, defendant’s “history of prior convictions for
serious or violent felonies” and failure to “acknowledge culpability or demonstrate any
remorse.”
The trial court calculated 292 days of credit and ordered defendant to pay a
mandatory minimum restitution fine of $300 (§ 1202.4), a stayed parole revocation fine
of $300 (§ 1202.45), a $30 court facility fee (Gov. Code, § 70373), and a $20 court
operations assessment (§ 1465.8).
Defendant timely appealed.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised of his right to file a supplemental brief within 30 days of
the date of filing of the opening brief. More than 30 days have elapsed, and defendant
has not filed a supplemental brief.
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 will correct an unauthorized aspect of defendant’s sentence. (See
People v. Rivera (2019) 7 Cal.5th 306, 348-349.)
The trial court’s imposition of $20, rather than $40, pursuant to section 1465.8,
was unauthorized. Accordingly, we modify the section 1465.8 assessment to $40.
Because the abstract of judgment states the correct amount, it need not be amended.
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DISPOSITION
The sentence is modified to reflect a court operations assessment of $40. In all
other respects, the judgment is affirmed.
/s/
BLEASE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
RENNER, J.
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