Filed 6/26/17 P. v. Lloyd 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

RAYMOND LELAND LLOYD, JR.,

Defendant and Appellant.
C083571

(Super. Ct. No. CM043301)




Appointed counsel for defendant Raymond Leland Lloyd, Jr., has requested that this court review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We modify the judgment as described herein, affirm as modified, and direct preparation of an amended and corrected abstract of judgment.
BACKGROUND
On July 1, 2015, victim L.K. allowed defendant to stay the night at L.K.’s campsite but asked defendant to leave the next morning. L.K. left for work the next day and when he returned, defendant was still at the campsite. They argued. Defendant hit L.K. on the side of the head with an axe and then fled. Defendant was arrested the next day. L.K. suffered a concussion and a fracture near his nose.
Defendant entered a negotiated plea of no contest to assault with a deadly weapon (ADW), to wit, an axe (Pen. Code, § 245, subd. (a)(1)) and admitted a strike prior for a 1985 first degree burglary charge (§§ 667, subds. (b)-(i), 1170.12) in exchange for dismissal of the remaining allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The dismissed allegations were: personal use of a deadly weapon within the meaning of section 1192.7, subdivision (c)(23); personal infliction of great bodily injury within the meaning of section 1192.7, subdivision (c)(8), section 667.5, subdivision (c)(8), and section 12022.7, subdivision (a); two other prior strike convictions (two robbery convictions in 1995); four prior prison terms within the meaning of section 667.5, subdivision (b); and three prior serious felony convictions within the meaning of section 667, subdivision (a)(1).
The trial court sentenced defendant to state prison for eight years (upper term of four years, doubled for the strike prior). The court also imposed a $200 “general fine” citing section 672, as well as various related fees and assessments.
Defendant appeals. The court granted defendant’s request for a certificate of probable cause. (§ 1237.5.)
DISCUSSION
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, supra, 25 Cal.3d 436.) Defendant filed a timely supplemental brief, contending that the abstract of judgment requires correction in that it erroneously reflects that his current offense is both a serious and violent felony by the checking of the two boxes marked “serious felony” and “violent felony.” He claims it should be classified as neither, because he did not admit the charged allegations, only ADW. He argues that he entered a plea to ADW alone as a “non-violent/non-serious” offense.
Defendant’s argument is partially correct; as we will explain.
The information charged defendant with ADW, in violation of section 245, subdivision (a)(1). It notified defendant that ADW “is a serious felony within the meaning of Penal Code section 1192.7[, subdivision ](c).”
More specifically, ADW is a serious felony under section 1192.7, subdivision (c)(31). This classification does not require additional factors be pled and proven, beyond the charge itself, to which defendant pled. Although the enhancement for personal use of a deadly weapon, which defendant correctly points out he did not admit, provides an additional basis for classification of his crime as a serious felony (§ 1192.7, subd. (c)(23)), the admission to ADW is sufficient basis (§ 1192.7, subd. (c)(31); see People v. Myers (2007) 148 Cal.App.4th 546, 554 [ADW is a serious felony even absent personal use of a weapon or personal infliction of great bodily injury]).
Defendant clearly was amply informed of this classification. Beyond the notification in the information itself, defendant initialed the statement on his plea form indicating that his attorney had explained that as a consequence of his plea, “[t]he offense to which I have pled may be alleged as a sentencing enhancement in any future felony prosecution as . . . [¶] (1) A serious or violent felony prior [¶] (2) A ‘strike’ under the three strikes law of California [¶] [and] (3) A prior prison term.” At the plea hearing, defendant confirmed that he had initialed the plea form and signed it, that he read and understood the plea form before doing so, and that he reviewed the form with defense counsel. Defense counsel confirmed that he believed defendant understood the “contents, nature, and effect of his change of plea.” The court found defendant entered his plea freely and voluntarily with “an understanding of the nature of the charges pending, as well as the consequences of the plea.”
However, defendant is correct that ADW is not necessarily classified as a “violent felony” under the relevant statute (§ 667.5, subd. (c)), and in defendant’s case it is not. Defendant did not admit the allegation of great bodily injury, which would have classified his ADW as a violent felony. (§ 667.5, subd. (c)(8).) This classification on the abstract of judgment is in error, and we shall direct correction.
We also note an error in the judgment that does not appear to have been corrected. Although the trial court imposed a $200 fine pursuant to section 672, plus accompanying assessments, section 672 by its own terms applies only when there is no specified fine. Here, section 245, subdivision (a)(1) specifies a potential fine (not exceeding $10,000). Section 672 is not applicable. We will modify the judgment to strike the $200 general fine and accompanying assessments except for the $30 conviction assessment fee (Gov. Code, § 70373), and the $40 court operations fee (§ 1465.8), which are mandatory and were orally imposed.
Further, the trial court orally imposed a presentence investigation report fee of $736, which was omitted from the abstract of judgment. Finally, although defendant was sentenced as a strike offender, the abstract fails to reflect that classification by checking of the appropriate box. We direct correction accordingly.
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 modified to strike the fine as detailed in this opinion. The trial court is directed to prepare an amended abstract of judgment that also contains the corrections detailed in this opinion, and to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.




/s/
DUARTE, J.



We concur:



/s/
ROBIE, Acting P. J.



/s/
BUTZ, J.