face="Times New Roman">
P.
v. Mitchell
Filed
face="Times New Roman">1/8/14
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
THE PEOPLE,
Plaintiff and Respondent,
v.
HUBERT
LAMAR MITCHELL,
Defendant and Appellant.
(Super.Ct.No.
RIF1200736)
face="Times New Roman">
face="Times New Roman"> APPEAL
from the Superior Court of Riverside
County. Mark E. Johnson, Judge. Affirmed.
face="Times New Roman"> Richard
Schwartzberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
face="Times New Roman"> No
appearance for Plaintiff and Respondent.
appeals his conviction on multiple counts, including three counts of attempted
carjacking. We will affirm the judgment.
PROCEDURAL HISTORY
face="Times New Roman"> The
information charged defendant with two counts of attempted kidnapping during a
carjacking (Pen. Code, §§ 664, 209.5; counts 1 & 2); attempted carjacking (Pen.
Code, § 664, 215, subd. (a); count 3); three counts of making criminal threats
(Pen. Code, § 422; counts 4, 5, 6); and felony assault with a knife (Pen. Code,
§ 245, subd. (a)(1); count 7). As
to all counts, the information
alleged that defendant personally used a deadly weapon, i.e., a knife. (Pen. Code, § 12022, subd. (b)(1), (b)(2).) Finally, the information alleged that
defendant had one prior serious felony conviction constituting a strike. (Pen. Code, § 667, subds. (a), (c), (e)(1).)
face="Times New Roman"> A
jury acquitted defendant on counts 1 and 2, finding him guilty instead of the
lesser included offense of attempted carjacking. It convicted him on counts 3 through 7 as
charged. The knife use allegation was
found true as to counts 3, 4, 6 and 7, but not true as to counts 1, 2 and
5. The prior serious felony and prior
strike allegations were stricken on motion of the prosecution.
face="Times New Roman"> The
court sentenced defendant to a prison term of nine years two months and awarded
presentence credits.
face="Times New Roman"> Defendant
filed a timely notice of appeal.
FACTS
Jose Sandoval and his pregnant wife, Mincie Ladrido, drove in a Sienna van to a
Circle K to buy gas. After Sandoval
parked at a pump, defendant approached him and asked for a ride. When Sandoval declined, defendant replied,
“I’m not fucking asking you†and “I swear I’ll just take your fucking car.†He also said he had just killed someone and
needed to get away. He offered $10,000
for a ride. He threw his wallet into the
van and threatened to kill Sandoval, Ladrido and their unborn child. Defendant was holding a knife.
by a car that had just pulled up to an adjacent pump, Sandoval told his wife to
go into the store and call 911. She
grabbed the wallet and the keys and went into the store. Sandoval followed her into the store. They saw defendant get into the van. They both thought he acted as though he was
under the influence of drugs
or alcohol.
ride from Sandoval, Adriana Perez drove up to the adjacent pump in a Tahoe
SUV. Her mother and her two children
were in the vehicle with her. She heard
yelling from the adjacent pump.
Defendant then approached her.
She tried to ignore him. He said,
“Sorry to do this to you, esa,†but Perez continued to ignore him. Defendant said someone had taken his kids and
that he was going to blow up someone’s house.
He said he needed her car. When
she refused to let him take the car, he pulled out a knife and said he had a
gun. He threatened to kill her. Perez’s mother yelled at defendant,
distracting him from Perez. She jumped
into the vehicle and drove away. She
called 911 when she had reached a place where she felt it was safe to do so.
victims were shown on security videos from the Circle K.
DISCUSSION
represent defendant on appeal. After examination of the record,
counsel filed an opening brief raising no issues and asking this court to
independently review the record. We
offered defendant the opportunity to file any supplemental brief he deemed
necessary, but he did not do so.
record and, aside from the clerical error discussed below, have found no
error. We are satisfied that defendant’s
attorney has fully complied with his
responsibilities and that no arguable issues exist. (People v. Kelly
(2006) 40 Cal.4th 106, 109-110; People v. Wende
(1979) 25 Cal.3d 436, 441.)
examined the transcript of the sentencing hearing to determine whether there was
an arguable issue whether the court abused its discretion in imposing the upper
term on count 3 and the upper term of three years for the knife use
enhancement, as mentioned by appointed counsel but not argued. We are satisfied that no abuse of discretion
occurred.
disclosed a discrepancy between the knife-use enhancement alleged as to count 3
and the form stating the jury’s true finding on that enhancement. The information alleges, pursuant to Penal
Code section 12022, subdivision (b)(2), that defendant personally used a knife
in the commission of attempted carjacking.
The finding form states that defendant personally used a knife in the
commission of count 3 “within the meaning of Penal Code section[] 12022,
subdivision (b)(1).†Section 12022,
subdivision (b)(1), provides for a one-year enhancement for personal use of a
deadly weapon, while section 12022, subdivision (b)(2), provides for an
enhancement of one, two or three years for use of a deadly weapon in the
commission of carjacking or attempted carjacking. The discrepancy is clearly a clerical error and
does not affect the jury’s factual finding that defendant personally used a
deadly weapon in the commission of attempted carjacking. (See People v. Trotter
(1992) 7 Cal.App.4th 363, 369-370; People v. Camacho
(2009) 171 Cal.App.4th 1269, 1272-1275.)
Had the error been brought to the attention of the trial court, the
court could have corrected it by interlineation, or we could remand the matter
for the limited purpose of correcting the finding form. However, because the abstract of judgment
correctly states that the enhancement was imposed pursuant to section 12022,
subdivision (b)(2), we will deem the reference in the finding form to the
incorrect statute surplusage and disregard it.
(See People v. Camacho, at p. 1272.)
DISPOSITION
REPORTS
face="Times New Roman">McKINSTER
face="Times New Roman"> Acting P. J.
We concur:
RICHLI
J.
MILLER
J.
