P. v. Holdridge
Filed 12/12/13 P. v. Holdridge CA1/3
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opinion has not been certified for publication or ordered published for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,
v.
BRENT JOHN
HOLDRIDGE,
Defendant and Appellant.
A135692
(Humboldt
County
Super. Ct.
Nos. CR1000371,
CR1006116A & CR1001616)
In
this appeal, defendant Brent John Holdridge challenges an order denying his
motion to withdraw his guilty pleas in three criminal cases. Holdridge contends that, despite being
promised probation with a suspended sentence, he was sentenced to serve seven
years eight months in state prison. According to Holdridge, he is entitled to
withdraw his pleas because the enactment of the Criminal Justice Realignment
Act of 2011
title="">[1]
(Realignment Act) rendered it impossible for the court to comply with the plea
agreement and place him on probation. For
reasons we shall explain, Holdridge’s argument lacks merit. The court’s decision to deny probation was
consistent with his plea agreement and was not compelled by the Realignment
Act. Accordingly, we affirm the
judgment.
Procedural Background
Holdridge
appeals from an order denying his motion
to withdraw his pleas in three Humboldt
County cases. For ease of reference, and consistent with
the identification of the cases in the abstract of judgment, we shall refer to case
number CR1000371 as case A, case number CR1006116A as case B, and case number CR1001616
as case C. Also relevant to this appeal
is Mendocino
County case number SCUKCRCR 09-93336202, which we shall refer to as
case D. The Mendocino County case—case
D—was the subject of a separate appeal in Division One of this court but
nonetheless bears upon the issues in this appeal because Holdridge’s plea agreement
in cases A, B, and C turned on the sentence imposed by the Mendocino County
Superior Court in case D.
name="_ftnref2" title="">[2]
In
January 2010, the Humboldt County District Attorney filed a complaint in case A
charging Holdridge with sale of methamphetamine (Health & Saf. Code,
§ 11379, subd. (a)), possession of methamphetamine (Health & Saf.
Code, § 11377, subd. (a)), misdemeanor possession of marijuana while
driving (Veh. Code, § 23222, subd. (b)), and driving a vehicle without a
license plate (Veh. Code, § 5200, subd. (a)). In addition, as to the charge of selling
methamphetamine, it was alleged that Holdridge had suffered two prior
convictions for narcotics offenses (Health
& Saf. Code, § 11370.2, subd. (c)).
In
March 2010, the Humboldt County District Attorney filed a complaint in case C
charging Holdridge with sale or transportation of marijuana (Health & Saf.
Code, § 11360, subd. (a)) and sale of methamphetamine (Health & Saf.
Code, § 11379, subd. (a)).
In
April 2010, the Mendocino County District Attorney filed an information in case
D charging Holdridge with transportation of methamphetamine (Health & Saf.
Code, § 11379, subd. (a)) and possession of methamphetamine for sale (Health
& Saf. Code, § 11378). It was also
alleged that Holdridge had suffered two prior convictions for narcotics
offenses. (Health & Saf. Code,
§ 11370.2, subd. (c).) The charges
in case D resulted from a probation search of Holdridge’s car during a traffic
stop in October 2009. (See
In
July 2010, Holdridge agreed to a conditional plea resolving cases A and C. In case A he agreed to plead guilty to sale
of methamphetamine and admit suffering two prior narcotics convictions, and in
case C he agreed to plead guilty to sale or transportation of marijuana. The remaining charges in cases A and C were
to be dismissed. The plea agreement
specified that Holdridge was to be placed on probation after being sentenced to
a ten-year term of imprisonment with execution of the sentence suspended.
In
October 2010, before Holdridge was sentenced in cases A and C, the Humboldt
County District Attorney filed a complaint in case B charging Holdridge with possession
of methamphetamine (Health & Saf. Code, § 11377, subd. (a)),
possession of a firearm by a convicted felon (Pen. Code, former § 12021,
subd. (a)(1)),
title="">[3]
and maintaining a place for selling or using methamphetamine (Health & Saf.
Code, § 11366). As to the charge of
possession of methamphetamine, it was alleged that Holdridge was armed with a
firearm during the commission of the offense.
(§ 12022, subd. (a)(1).) At
a hearing conducted in November 2010, the parties agreed to continue sentencing
in cases A and C pending the outcome of case D in Mendocino County.
In
January 2011, Holdridge agreed to a plea resolving case D in Mendocino
County. He agreed to plead no contest to
possession of methamphetamine for sale and admitted one prior narcotics
conviction in exchange for dismissal of the remaining charges. The plea was an open plea with a maximum
confinement time of six years. During
the plea colloquy, the Mendocino County Superior Court admonished Holdridge
that “[i]t’s an open plea, meaning no representations are made to you as to
whether you would be on probation or in custody or a prison term.â€
and C)
In
February 2011, Holdridge agreed to a plea resolving case B in Humboldt
County. He agreed to enter a plea of
guilty to possession of a firearm by a convicted felon in exchange for
dismissal of the remaining charges in case B.
As part of the deal, he agreed that he would be subject to a maximum aggregate
term of 10 years eight months in cases A, B, and C, with the understanding that
execution of the sentence would be suspended and he would be placed on
probation if he were granted
probation in case D by the court in Mendocino County. In a letter to the probation department, the
deputy district attorney explained the terms of the plea as follows: “The defendant is facing a maximum term of
ten years and eight months on all three of his pending felonies [in Humboldt
County]. The terms of the plea are that
if he is placed on a grant of probation in Mendocino County, he will also
receive probation here with the understanding it is 10 years, 8 months,
execution of sentence suspended. If he
receives prison in Mendocino County, he will also be sent to prison on our cases.â€
Consequently, unlike the earlier, July
2010 plea deal involving cases A and C in which Holdridge was promised
probation with a suspended sentence, the February 2011 plea deal resolving all
three of Holdridge’s Humboldt County cases (A, B, and C) offered the promise of
probation only if the Mendocino
County Superior Court first granted him probation in case D.
In
a supplemental probation report prepared in April 2011, the Humboldt County
probation department noted that the Mendocino County probation department was
recommending a prison sentence for Holdridge in case D. In anticipation of being sentenced to prison
in case D in Mendocino County, Holdridge asked the Humboldt County Superior
Court at a hearing on July 5, 2011, to impose the shortest possible prison
sentence in cases A, B, and C. The
Humboldt County Superior Court proceeded to impose an aggregate prison term of seven
years eight months in cases A, B, and C.
On
July 14, 2011, Holdridge filed a motion to withdraw his pleas in cases A, B,
and C. He argued that the prison
sentence violated his plea agreement because he had not yet been sentenced in
case D in Mendocino County. In response
to the motion, the Humboldt County Superior Court offered to vacate the
sentence in order to permit Holdridge to be sentenced first in case D in
Mendocino County. In September 2011,
with Holdridge’s consent, the Humboldt County Superior Court vacated its
sentence in cases A, B, and C while maintaining the pleas. The court continued sentencing in cases A, B,
and C pending sentencing in case D in Mendocino County.
Holdridge
was sentenced in case D in Mendocino County on November 4, 2011. As reflected in the probation report,
Holdridge was presumptively ineligible for probation under section 1203,
subdivision (e)(4), because he had two prior felony convictions, although
probation could be granted in an unusual case where the interests of justice would
be served by that disposition. The court
denied probation after finding no unusual circumstances that would justify a
grant of probation to Holdridge. The
court imposed a five-year split sentence under the Realignment Act, with two
years to be served in county jail followed by three years under the mandatory
supervision of the probation department.
(See § 1170, subd. (h)(5)(B).) Before the court pronounced sentence, the
prosecutor observed that Holdridge would likely be sentenced to prison upon his
return to Humboldt County because his conviction in case B for being a felon in
possession of a firearm disqualified him being sentenced under the Realignment
Act. The prosecutor pointed out that Holdridge’s
Realignment Act sentence in case D would likely be converted to a state prison
sentence following sentencing in Humboldt County in cases A, B, and C, because
“if he goes to [state prison] out of Humboldt, he’s going to go to [state prison]
out of here as well, the way the Realignment law works.â€
C
Holdridge
was returned to Humboldt County for sentencing in cases A, B, and C after being
sentenced in case D in Mendocino County.
In a supplemental probation report, the probation officer noted that
Holdridge was ineligible for sentencing under the Realignment Act as a result
of his conviction for being a felon in possession of a firearm in case B. The probation officer also concluded there
were no unusual circumstances justifying a grant of probation after pointing
out that Holdridge was presumptively ineligible for probation under section
1203, subdivision (e)(4). The probation
officer recommended reimposing the seven years eight months sentence that had
previously been imposed but vacated in order to allow Holdridge to be sentenced
first in case D in Mendocino County.
At
sentencing in Humboldt County on January 24, 2012, Holdridge offered to waive
presentence credits for a 10-year term of felony probation consecutive to the
five-year split sentence he received in case D in Mendocino County. The court responded that Holdridge was
ineligible for probation unless there were unusual circumstances as set forth
in the applicable rule of court. The
court denied probation and imposed an aggregate state prison sentence of seven
years eight months in cases A, B, and C. Following the pronouncement of the sentence,
the court advised Holdridge that he had to file a notice of appeal within 60
days if he wished to challenge the judgment or sentence.
Holdridge
did not file a notice of appeal within 60 days after the sentencing hearing in
January 2012. Instead, Holdridge
retained as substitute counsel the attorney who had represented him in case D
in Mendocino County.
On
February 23, 2012, Holdridge’s substitute counsel filed a
Humboldt County cases. Holdridge claimed
he was not advised at the time of his pleas that he was presumptively
ineligible for probation. He also
contended he received ineffective assistance of counsel because his attorney
failed to investigate the effect his plea would have upon his eligibility to
serve his sentence in county jail under the Realignment Act. He further argued that his Humboldt attorney
never contacted counsel in Mendocino County to determine if there was any
chance he would receive a probationary sentence in case D. Holdridge’s substitute counsel later clarified
that the motion to withdraw was primarily limited to the plea in case B, in
which Holdridge was convicted of being a felon in possession of a firearm. Holdridge sought to withdraw his plea in case
B to the firearm possession count and, in its place, enter a guilty plea to the
charge of possessing methamphetamine. Because
the firearm possession count in case B was the only conviction preventing
Holdridge from being eligible for sentencing under the Realignment Act, he would
be eligible to serve his time locally in county jail in cases A through D if
the firearm possession count were dismissed.
Pleas
On
April 19, 2012, the court held an evidentiary hearing on Holdridge’s motion to
withdraw his pleas. Holdridge claimed he
did not understand that his probationary status in the Humboldt County cases (A
through C) depended upon whether the court granted him probation in case D in
Mendocino County. Nevertheless, his
substitute counsel had previously acknowledged that the promise was that he
would be given probation in Humboldt County if he were given probation in
Mendocino County. Substitute counsel
also acknowledged previously that Holdridge was not technically ineligible for
probation under his pleas but claimed that he was denied the opportunity to
serve his time in “local prison†under the Realignment Act as a result of his
guilty plea to the charge of being a felon in possession of a firearm.
The
prosecutor refused to restructure the plea agreement to allow Holdridge to be
sentenced under the Realignment Act and serve his time in county jail. The prosecutor argued that Holdridge’s
testimony about his misunderstanding of the plea agreement was contradicted by
the case files and the hearing transcript, all of which reflected a promise of
probation if Mendocino County granted probation, “though the odds of [that]
were pretty slim.â€
Following
the evidentiary hearing on the motion to withdraw pleas, the court found that
Holdridge was adequately advised about the effect of his pleas and denied the
motion. The court rejected Holdridge’s
testimony as inaccurate and found he had consulted counsel for over two years
during many appearances in his long-continued cases. According to the court, when Holdridge
negotiated the 10 year eight month cap in cases A, B, and C, it was clear in
the record of the plea that the Humboldt County court had delegated the
probation decision to the Mendocino County court. The court had accepted the delegation of the
probation decision to the Mendocino County court, reasoning that Holdridge
might have “some advantage or some drug program or something else that he could
convince that Mendocino County court there were sufficient unusual
circumstances to justify granting him probation . . . .â€
After
the court denied the motion to withdraw the pleas in cases A, B, and C, it declined
to reconsider the seven year eight month aggregate sentence it had imposed in those
cases. The court resentenced Holdridge
in case D, in which the Mendocino County court had originally imposed a
Realignment Act split sentence that was to be served locally. In case D, the Humboldt County court
sentenced Holdridge to serve a two-year concurrent term for methamphetamine
possession and imposed but stayed a three-year enhancement for the prior
narcotics conviction.
On
June 6, 2012, Holdridge filed notices of appeal from a purported judgment
entered on April 19, 2012, in cases A, B, and C. The Humboldt County Superior Court granted
the appeals.
Discussion
1. Appealability and Standard of Review
At
the outset, we address the Attorney General’s contention that the appeal should
be dismissed as untimely. The argument
is premised on the fact that judgment was rendered on January 24, 2012, when
the court denied probation, imposed a seven year eight month sentence, and
advised Holdridge of his appeal rights, including the 60-day time limit for
filing the notice of appeal. Holdridge
ultimately filed an appeal in cases A through C on June 6, 2012, when he
purported to appeal from the court’s order of April 19, 2012, denying his
motion to withdraw his pleas. According
to the Attorney General, the only judgment entered on April 19 was the term
imposed on resentencing Holdridge in case D, from which no appeal was
taken. The Attorney General relies on
the principle that there is no right to appeal from an order denying a motion
to vacate a judgment of conviction on a ground that could have been reviewed on
appeal from the judgment. (See
882.)
We
agree with the Attorney General that the appeal is untimely as to the judgment in
cases A, B, and C entered on January 24, 2012.
However, the appeal is timely as to the order of April 19, 2012, denying
Holdridge’s motion to withdraw his pleas.
(See § 1237, subd. (b) [appeal may be taken from any order after
judgment affecting the substantial rights of the party].)
A
statutory motion to withdraw a plea under section 1018 may be made at any time
before judgment has been entered upon a showing of good cause. (People
v. Weaver (2004) 118 Cal.App.4th 131, 145; In re Vargas (2000) 83 Cal.App.4th 1125, 1142; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616-1617.) “In a criminal case, judgment is rendered
when the trial court orally pronounces sentence.†(People
v. Ibanez (1999) 76 Cal.App.4th 537, 543.)
In
this case, because the court had already pronounced Holdridge’s sentence by the
time he filed his motion to withdraw his pleas, the motion does not qualify as
a statutory motion to withdraw under section 1018. Instead, it is more properly characterized as
a postjudgment, nonstatutory motion to withdraw the pleas. (See People
v. Castaneda, supra, 37 Cal.App.4th at pp. 1616-1617.)
As
the Attorney General points out, a postjudgment motion to withdraw a plea is
the equivalent of an application for a writ of error coram nobis. (See
1096.) “ ‘The writ will properly issue
only when the petitioner can establish three elements: (1) that some fact existed which, without his
fault or negligence, was not presented to the court at the trial and which
would have prevented the rendition of the judgment; (2) that the new evidence
does not go to the merits of the issues of fact determined at trial; and (3)
that he did not know nor could he have, with due diligence, discovered the
facts upon which he relies any sooner than the point at which he petitions for
the writ.’ †(People v. Gallardo (2000) 77 Cal.App.4th 971, 987.) It is well established that
ineffective assistance of counsel. (
Because
a postjudgment motion to vacate a plea is the equivalent of a petition for writ
of error coram nobis, we employ the same standard of review applicable to an
appeal from such a writ proceeding. We
will not disturb the trial court’s decision unless the trial court abused its
discretion. (People v. Dubon (2001) 90 Cal.App.4th 944, 951.)
2. Motion to Withdraw Pleas
Holdridge’s primary contention
on appeal is that the Realignment Act precluded the trial court from giving
effect to the parties’ plea agreement.
He argues that he was promised probation but that changes in the law
prevented the court from placing him on probation with a suspended sentence. He claims his plea bargain was “legally
illusory†as a result of the Realignment Act.
As we explain, Holdridge’s argument misconceives the basis for the
motion to withdraw the pleas in the trial court and the effect of the
Realignment Act.
The
Realignment Act “ ‘enacted sweeping changes to long-standing sentencing
laws,’ including replacing prison commitments with county jail commitments
for certain felonies and eligible defendants.â€
(People v. Clytus (2012) 209
Cal.App.4th 1001, 1004, fn. omitted.) Breaking
with the historical practice of incarcerating all felons in state prison, the
Legislature amended the Penal Code to make county jail the default location for
incarcerating persons convicted of most nonserious, nonviolent, and nonsexual
felonies. (See § 1170, subd.
(h)(2).)
When
a defendant is eligible to be sentenced under the Realignment Act, the
sentencing court retains discretion to issue a “split sentence†in which part
of the sentence is served in county jail and the remainder of the sentence is
served under the supervision of the county probation officer in “mandatory
supervision.†(§ 1170, subd.
(h)(5)(B); see People v. Kelly (2013)
215 Cal.App.4th 297, 301.) The
Realignment Act applies to “any person sentenced on or after October 1,
2011.†(§ 1170, subd. (h)(6).)
In
the trial court, Holdridge’s motion to withdraw his pleas was essentially
premised on two contentions. First, he
argued that he was not properly advised that he was presumptively ineligible
for probation under section 1203, subdivision (e)(4) as a result of his prior
felony convictions. He claimed that he
would not have accepted a plea that conditioned his right to probation in cases
A, B, and C upon the probation decision of the Mendocino County Superior Court
in case D, when it was unlikely that the Mendocino court would have the power
to grant probation absent unusual circumstances. Second, he argued that his counsel had failed
to investigate the consequences of his guilty plea to the charge of being a
felon in possession of a firearm in light of the Realignment Act. Recognizing that the felon in possession of a
firearm conviction made him ineligible for sentencing under the Realignment
Act,
Holdridge sought to withdraw his plea to that charge and renegotiate his plea
deal in case B in order to dismiss that charge.
Dismissal of the felon in possession of a firearm charge would permit
Holdridge to serve his sentence in county jail pursuant to the Realignment
Act. In effect, Holdridge sought to be
placed on probation (or withdraw his pleas if that disposition was
unavailable), or, in the alternative, restructure his plea deal so that he
could serve his time in county jail instead of state prison.
The
trial court rejected Holdridge’s claims, reasoning that he was properly advised
of the consequences of his plea. In
essence, the court concluded that Holdridge accepted the plea deal well aware
of the fact that it was unlikely he would be granted probation in case D in
Mendocino County. As to the claim that Holdridge
should have been advised of the fact that his plea deal in case B would render
him ineligible for sentencing under the Realignment Act, the trial court
correctly observed that, as of February 4, 2011, the date of his guilty plea in
that case, the Realignment Act had not yet been enacted. As the trial court stated, the Realignment Act
was only a “twinkle in Jerry Brown’s eye at that time.†Consequently, counsel could not be expected
to advise his client about the consequences of a law that did not yet even
exist. At the time Holdridge entered his
guilty pleas in cases A, B, and C, it was not possible to serve a felony
sentence in county jail. Holdridge made
his pleas without any expectation that he could serve his sentence in county
jail instead of state prison.
As
noted above, a claim of ineffective assistance of counsel is not cognizable in
a postjudgment motion to vacate a plea, which is the equivalent of an
application for a writ of error coram
nobis. (People v. Gallardo, supra, 77 Cal.App.4th at p. 987;
1104.) Because Holdridge’s claims in the
trial court turned on his assertion that he received ineffective assistance of
counsel, the claims did not support a postjudgment motion to withdraw his
pleas. The trial court did not abuse its
discretion in rejecting Holdridge’s motion.
On
appeal, Holdridge takes a different approach, arguing that the Realignment Act
prevented the trial court from granting him probation and giving effect to his
plea agreement. Holdridge has failed to
explain how and in what manner the Realignment Act prevented the trial court
from granting him a probationary sentence.
He was presumptively ineligible for probation under section 1203,
subdivision (e)(4) as a result of his prior convictions. It was the application of section 1203,
subdivision (e)(4) that effectively prevented the trial court from placing him on
probation. That statute is wholly
unrelated to the Realignment Act and was in effect at the time Holdridge
entered his pleas. The Realignment Act
made it neither more nor less likely that he would receive a probationary
sentence. Simply put, the Realignment
Act has no bearing upon whether the trial court could impose a probationary
sentence or comply with the terms of Holdridge’s plea agreement.
The
only potential impact of the Realignment Act upon Holdridge is where he would
serve his sentence if the court denied probation—county jail or state prison. Insofar as Holdridge claims he was denied the
opportunity to serve his sentence in county jail, or to receive a split
sentence under the Realignment Act, he is not entitled to relief. He entered his plea agreement in case B before
enactment of the Realignment Act. His
plea was not contingent upon serving his sentence locally; indeed, at the time
he entered his plea his only option was to serve his sentence in state prison
if he did not receive probation. As the
Attorney General observes, after the enactment of the Realignment Act, there
were probably “countless defendants†in Holdridge’s position who would have
preferred to renegotiate their plea agreements to eliminate convictions that
disqualified them from being able to serve their felony sentences locally in
county jail. Like those defendants,
Holdridge is not entitled to withdraw his plea simply because he could benefit
from a change in the law that was not foreseen at the time he entered his plea.
We
conclude the trial court acted well within its discretion in denying
Holdridge’s postjudgment motion to withdraw his pleas in cases A, B, and C.
3. Corrections to Abstract of Judgment
Holdridge
contends the abstract of judgment should be corrected to reflect that the Humboldt
County Superior Court imposed a $200 restitution fine in case D when it
resentenced him in that case in April 2012.
The Attorney General agrees that the abstract of judgment is defective,
but not for the reason argued by Holdridge.
In
case D, the Mendocino County Superior Court imposed a $1,000 restitution fine
when it pronounced its split sentence under the Realignment Act in November
2011. When the Humboldt County Superior
Court resentenced Holdridge in case D in April 2012, it not only imposed a
concurrent prison term in place of the Realignment Act sentence but also
imposed a $200 restitution fine in place of the $1,000 restitution fine that
had been imposed by the Mendocino County Superior Court. At present, the abstract of judgment reflects
the $1,000 restitution fine in case D originally imposed by the court in
Mendocino County. Holdridge contends the
abstract should be corrected to reflect the $200 restitution fine that was
subsequently imposed by the Humboldt County Superior Court when it resentenced
him in case D.
Holdridge’s
argument fails for a number of reasons.
First, as noted above, Holdridge did not file an appeal in case D
following his resentencing in April 2012.
Consequently, a challenge to the sentence imposed in case D is not
cognizable in this appeal.
name="_ftnref5" title="">[5] Further, even though we possess the inherent
authority to correct an unauthorized sentence (see People v. Scott (1994) 9 Cal.4th 331, 354), no grounds exist here
to correct the sentence. Because a
$1,000 restitution fine is within the discretionary limits for such fines (see
§ 1202.4, subd. (b)(1)), the sentence is not unauthorized. Moreover, on resentencing, the
“[d]iscretionary decisions of the judges in the previous cases may not be
changed by the judge in the current case.â€
(Cal. Rules of Court, rule 4.452(3).) The Humboldt County Superior Court lacked the
power to modify the discretionary decision of the Mendocino County Superior
Court by reducing the restitution fine in case D to $200. Thus, the abstract of judgment properly
reflects a $1000 restitution fine in case D.
The
Attorney General has identified a number of errors in the abstract of
judgment. Holdridge concedes that the
errors must be corrected.
With
respect to count A1 in box 1 of the abstract, the conviction date is listed as
July 2, 2011, the conviction is listed as one for sale or transportation of
marijuana (Health & Saf. Code, § 11360, subd. (a)), and the sentence is
listed as the middle term of two years.
The conviction date should be July 2, 2010, the conviction should be for
sale of a controlled substance (Health & Saf. Code, § 11379, subd.
(a)), and the sentence should be listed as the upper term of four years.
With
respect to count B2 in box 1 of the abstract, the conviction date is listed as
February 24, 2011. The correct date of
the conviction is February 4, 2011.
With
respect to count C1 in box 1 of the abstract, the conviction date is listed as
July 2, 2011, and the conviction is listed as one for sale of a controlled
substance (Health & Saf. Code, § 11379, subd. (a)). The conviction date should be July 2, 2010, and
the conviction should be for sale or transportation of marijuana (Health &
Saf. Code, § 11360, subd. (a)).
Finally,
in boxes 6 and 8 of the abstract, the aggregate sentence is listed as five
years eight months. The correct
aggregate sentence is seven years eight months.
Disposition
The judgment is affirmed. The trial court is directed to correct the
abstract of judgment as follows: (1) count A1 should be listed as a conviction
for sale of a controlled substance (Health & Saf. Code, § 11379, subd.
(a)), with a conviction date of July 2, 2010, and an upper term sentence of
four years; (2) count B2 should reflect a conviction date of February 4, 2011;
(3) count C1 should be listed as a conviction for sale or transportation of
marijuana (Health & Saf. Code, § 11360, subd. (a)), with a conviction
date of July 2, 2010; and (4) the aggregate sentence in boxes 6 and 8 of the
abstract should be listed as seven years eight months. The trial court shall forward a certified
copy of the corrected abstract to the Department
of Corrections and Rehabilitation.
_________________________
McGuiness,
P.J.
We concur:
_________________________
Pollak, J.
_________________________
Siggins, J.
2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1.
request of the Attorney General, we take judicial notice of the record and
appellate opinion in case D (People v.
Holdridge (March 29, 2012, A134125 [nonpub. opn.]). (Evid. Code, §§ 452, subd. (d), 459,
subd. (a); People v. McKinzie (2012)
54 Cal.4th 1302, 1350, fn. 1.)
