P. v. Mulvey
Filed 5/2/13 P.
v. Mulvey 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
(Shasta)
----
THE
PEOPLE,
Plaintiff and Respondent,
v.
KEITH
RUSSELL MULVEY,
Defendant and
Appellant.
C072274
(Super. Ct. Nos. 11F3135 & 11F4093)
Appointed counsel for defendant
Keith Russell Mulvey asked 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 ).) Our review of the
record discloses that a correction must be made to the abstract of
judgment. Finding no other arguable
error that would result in a disposition more favorable to defendant, we will
affirm the judgment.
I
Because the matters were resolved by
plea, the facts are taken from the preliminary
hearing in case No. 11F3135, and from the probation report summarizing the
police report in case No. 11F4093.
Case
No. 11F3135
Defendant owed Larry Stewart
$40. When Stewart asked defendant about
the money, defendant stabbed him in the back.
Stewart sustained a puncture wound about three-quarters of an inch wide
and an inch deep.
Defendant pleaded no contest to
§ 245, subd. (a)(1)).
name="_ftnref1" title="">[1]
The trial court dismissed enhancement allegations that defendant had a
prior strike conviction (§ 1170.12), a prior serious felony conviction
(§ 667, subd. (a)(1)), and had served three prior prison terms
(§ 667.5, subd. (b)).
The trial court sentenced defendant
to the stipulated term of four years in state prison, awarded 72 days of
presentence custody credit, and ordered him to pay an $800 restitution fund
fine (§ 1202.4), an $800 parole revocation fine suspended unless parole is
revoked (§ 1202.45), a $40 court security fee (§ 1465.8, subd.
(a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a
$151 booking fee (Gov. Code, § 29550).
Defendant did not obtain a certificate
of probable cause.
Case
No. 11F4093
Defendant and Jay Wood engaged in a
theft scheme at Wal-Mart. They filled
separate shopping carts with the same items.
Defendant purchased the items in his cart and left the store, dropping
the receipt on his way out of the store.
Wood picked up the receipt and left the store without paying for the
items in his cart. When a Wal-Mart asset
protection agent stopped him, Wood gave her the receipt and fled.
The trial court denied defendant’s
burglary (§ 459) and admitted he had a prior strike conviction
(§ 1170.12) and had served one prior prison term (§ 667.5, subd.
(b)). Other enhancement allegations were
dismissed.
The trial court sentenced defendant
to a stipulated term of one year eight months, to run consecutively with the
sentence in case No. 11F3135. The trial
court ordered him to pay a $200 restitution fund fine (§ 1202.4), a $200
parole revocation fine suspended unless parole is revoked (§ 1202.45), a
$40 court security fee (§ 1465.8, subd. (a)(1)), a $30 court facilities
assessment (Gov. Code, § 70373) and a $38 local crime prevention fine
(§ 1202.5). Because defendant was
in custody as a sentenced state prisoner for case No. 11F3135, he was not
entitled to presentence credit.
Defendant did not obtain a certificate of probable cause.
II
Appointed counsel filed an opening
brief setting forth the facts of the case and asking this court to review the
record and determine whether there are any arguable issues on appeal. (Wende,
supra, 25 Cal.3d 436.)
Defendant was advised by counsel of the right to file a
date of filing the opening brief. More
than 30 days elapsed and we received no communication from defendant.
Our review of the record discloses a
clerical error on the abstract of judgment.
The abstract does not reflect the $151 booking fee orally imposed by the
trial court in case No. 11F3135. “Courts
may correct clerical errors at any time, and appellate courts (including this
one) that have properly assumed jurisdiction of cases have ordered correction
of abstracts of judgment that did not accurately reflect the oral judgments of
sentencing courts.†(
26 Cal.4th 181, 185.) We will
direct the trial court to correct the abstract of judgment.
Having undertaken an examination of
the entire record, we find no other arguable error that would result in a
disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a
corrected abstract of judgment reflecting the imposition of the $151 booking
fee in case No. 11F3135, and to forward a certified copy of the corrected
abstract of judgment to the California Department
of Corrections and Rehabilitation.
MAURO , J.
We concur:
ROBIE , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1] Undesignated statutory
references are to the Penal Code.
name="_ftn2" title="">[2] This fee was imposed orally
by the court, but is not reflected in the abstract of judgment.
