P. v. Potter

P. v. Potter

Filed 8/5/08 P. v. Potter 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

THE PEOPLE, Plaintiff and Respondent, v. JAMES DOYLE POTTER, Defendant and Appellant.

C057582 (Super. Ct. No. 06F11185)

On September 9, 2006, defendant James Doyle Potter, an inmate at Folsom State Prison, visited with his wife in the visitation room at the prison. Correctional Officers Eric Walton and Wade Critz worked in the visiting surveillance room. Officer Walton observed defendant take something from his wifes waistband and put it in the back of his pants. Officer Critz notified Officer Michael Sullivan who was working on the floor of the visitation room to handcuff defendant and take him to the holding cell. Officer Sullivan did so. Officer Kristian Hardy searched the holding cell to make sure it was free of contraband and then Officer Sullivan put defendant in the holding cell. When Officer Critz arrived to conduct a body search and removed defendant from the cell, Officer Walton found an object on the floor. The object contained 4.01 grams of marijuana. The videotape of defendants interaction with his wife in the visitation room was played for the jury.

A jury convicted defendant of possession of marijuana by an inmate in a prison facility (Pen. Code, 4573.6). In bifurcated proceedings, the court found a strike prior [1994 first degree burglary] (Pen. Code,  667, subds. (b)-(i), 1170.12) to be true. The court sentenced defendant to state prison for six years, that is, the midterm of three years doubled for the strike prior. The court ordered the term to be served consecutive to the term he was serving.

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

We do find an error in preparation of the abstract of judgment. At sentencing, the court ordered defendants six-year sentence to run consecutive to his current state prison sentence. The abstract reflects this oral pronouncement of judgment under other orders and reads, To be served consecutive to state prison term in case number 511845-0 (Fresno County). However, the abstract also erroneously reflects that the sentence is to run concurrent. A box is checked next to the statement which reads, This sentence is to run concurrent with (specify). Nothing is specified; the statement is not completed. Checking the box amounts to a clerical error. The abstract requires correction to reflect the oral pronouncement of judgment, that is, the sentence is to run consecutive and deleting the reference to a concurrent term. We will direct the superior court to correct the abstract accordingly. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Mesa (1975) 14 Cal.3d 466, 471.)

DISPOSITION

The trial court is directed to prepare a corrected abstract of judgment reflecting only that the sentence is to run consecutive to defendants current prison term, deleting the reference to a concurrent term, and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

HULL, J.

BUTZ , J.

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