P. v. Hennings
Filed 2/27/08 P. v. Hennings CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, Plaintiff and Respondent, v. ADAM SCOTT HENNINGS, Defendant and Appellant. | A117483 & A119042 (Humboldt County Super. Ct. No. CR055450) |
Defendant appeals from a judgment following his pleas of guilty and imposition of sentence.[1] His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has advised defendant that he could file a supplemental brief raising any issues he wishes to call to this courts attention. We have not received any supplemental brief.We have independently reviewed the record and conclude that no arguable issues are presented for review and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Following a preliminary hearing, a six-count information was filed charging defendant with the following: attempted murder (Pen. Code, 664/187), count one; discharging a firearm at an inhabited dwelling (Pen. Code, 246), count two; discharging a firearm in a grossly negligent manner (Pen. Code, 246.3), count three; child endangerment (Pen. Code, 273a, subd. (a)), count four; management of a location used for the storage or manufacture of a controlled substance (Health & Saf., 11366.5, subd. (a), count five; and possession of marijuana for sale (Health & Saf., 11359), count six. The information also contained allegations pursuant to Penal Code sections 1192.7, subdivisions (c)(1), (8) and (33), 12022.53, subdivision (c), and 12022, subdivisions (a)(1) and (c).
On June 2, 2006, defendant entered pleas of guilty to counts two and five. The remaining charges and allegations were dismissed.[2] The matter was then referred to the probation office for a report.
A sentencing hearing was held on September 13, 2006. After the court heard statements from the victims and comments from counsel, and upon the suggestion from the district attorney, it ordered defendant committed to the Department of Corrections for a diagnosis and for recommendations pursuant to the provisions of Penal Code section 1203.03.[3]
On February 26, 2007, after receipt of the diagnostic report dated November 17, 2006, another sentencing hearing was held. The court had before it various reports and heard from the victim and individuals called by the defendant. At the conclusion of the hearing, the court denied probation and sentenced defendant to five years in state prison on count two and a consecutive eight months on count five. Defendant was awarded a total of 348 days of custody credits and was ordered to pay various fees and fines. A notice of appeal from the judgment was timely filed on April 19, 2007.
A motion with a declaration and numerous attachments was filed on June 7, 2007, by co-counsel for defendant requesting the court to recall and modify the sentence pursuant to Penal Code section 1170, subdivision (d).[4] The court denied the request on July 16, 2007. A notice of appeal from this order was filed on September 6, 2007.
The facts upon which the information was based are not complex. On October 20, 2005, Stamati Panos and his family were living on River Road in Rancho Sequoia. Defendants residence was located across from Panoss residence separated by a 50-foot road. For about three months prior to October 20, Panos had heard gun fire from defendants property. On the evening of October 20, a bullet penetrated the wall of Panoss trailer and grazed his arm. He fired a warning shot into the air from his shotgun and yelled Who the f [is] shooting. He heard defendant reply It wasnt me, dude. Panos called his wife who then called the police.
Deputy Sheriff Thomas Clark responded to the call and arrived at approximately 11:45 p.m. He observed a .45-caliber projectile at Panoss residence. The deputy together with other officers went to defendants residence. Defendant emerged wearing a military-issue Kevlar vest. Several loaded .45-caliber magazines and a holster were removed from his person. After being advised of his Miranda[5] rights defendant directed the officers to a .45-caliber handgun on a bed in his residence. Also found were six individually bagged pounds of marijuana bud and 23 pounds of drying marijuana plants. Spent .45-caliber casings were found on the ground near defendants truck.
DISCUSSION
Defendant was represented by counsel at all critical stages of the proceedings. He received fair hearings at every point of the process of his plea, sentencing, and post-sentencing motions. Defendant was properly advised of his rights prior to entry of his pleas and knowingly and intelligently waived those rights. He was fully advised of the consequences of his pleas.
There are no issues relating to the legality of the seizure of the gun or marijuana found in defendants residence.
We find no sentencing error. The sentence was fully supported by the underlying facts, circumstances and record. The trial court stated proper reasons for denying appellant probation and imposing the sentence it selected. It did not err or abuse its discretion in its imposition of sentence.
Defendant cannot appeal from the courts order denying his motion to recall and modify his sentence. This is not an appealable order. [T]he courts have uniformly held that an order denying a defendants request to resentence pursuant to [Penal Code] section 1170 subdivision (d) is not appealable as an order affecting the substantial rights of the party. This is because the defendant has no right to request such an order in the first instance; consequently, his substantial rights cannot be affected by an order denying that which he had no right to request. (People v. Pritchett (1993) 20 Cal.App.4th 190, 194.) Although the order denying the motion to recall the sentence is not appealable, we have reviewed the record of that proceeding and conclude the trial court did not err in denying the motion to recall the sentence.
There are no meritorious issues to be argued on appeal. We note, however, that the abstract of judgment reflects that defendant pled guilty to count A1 rather than count two. The abstract must be corrected.
DISPOSITION
After a full review of the record, we find no arguable issues. The clerk of the court is ordered to file an amended abstract of judgment reflecting that defendant entered a plea to count two; the clerk is to then forward a copy of the amended abstract of judgment to the California Department of Corrections.
The judgment is affirmed.
__________________________________ Swager, J. | |
We concur: __________________________________ Marchiano, P. J. __________________________________ Margulies, J. |
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People v. Hennings, A117483, A119042
[1]We have before us two separate appeals. On our own motion we have ordered that they be consolidated for decision.
[2]Defendant also admitted violating probation in an unrelated misdemeanor case.
[3]Penal Code section 1203.03, subdivision (a) provides: In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.
[4]This provision reads: When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
[5]Miranda v. Arizona (1966) 384 U.S. 436.
