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The People v. Richard Lynn Elsea

August 16, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD LYNN ELSEA, DEFENDANT AND APPELLANT.



(Super. Ct. No. F10209)

The opinion of the court was delivered by: Mauro , J.

P. v. Elsea 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Richard Lynn Elsea 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).) We conclude that the trial court misadvised defendant regarding the consequences of his plea -- specifically, the amount of time he would have to serve on his sentence -- but it is not clear from this record whether the misadvisement was prejudicial, i.e., whether defendant would have declined the plea agreement had he known the actual amount of time he would have to serve. Under the circumstances, we will remand this matter to the trial court for a determination of prejudice.

I

On August 5, 2010, defendant and Ricky Clark were walking and came to the residence of Robert Looper.*fn1 They began antagonizing Robert's dogs and Robert told them to stop. Words were exchanged and Robert told them to "just keep walking." At that point, Stephanie Looper, Robert's wife, came to the door. Defendant and Ricky began calling her a bitch. Robert asked defendant and Ricky what their problem was. Defendant and Ricky approached Robert, each brandishing a knife. Robert told them to put the knives away and they responded that he should get back in the house or they were going to "cut" or "kill" him. After defendant again threatened Robert with the knife, defendant and Ricky started walking away.

At that point, Cody Looper, the Loopers' nephew, came around the corner. Robert told Cody to call the police. Cody made the call and then Cody, Stephanie and Robert followed defendant and Ricky. Defendant and Ricky confronted the Loopers about calling the police. Defendant kicked and stabbed Robert, and Stephanie was cut on the thumb. The police arrived and arrested defendant and Ricky.

Defendant was charged in counts 1 and 2 with assault with a deadly weapon, a knife (Pen. Code,*fn2 § 245, subd. (a)(1)). In count 1 it was further alleged that he personally inflicted great bodily injury (§ 12022.7). In addition, it was alleged that defendant served a prior prison term within the meaning of section 667.5, subdivision (b).

On September 23, 2010, pursuant to a plea bargain, defendant pleaded guilty to count 1 and admitted the great bodily injury enhancement. In taking defendant's plea, the trial court repeatedly advised defendant that he would have to serve 80 percent of his sentence. The trial court then immediately sentenced defendant to a stipulated six-year term (three years for the assault plus three years for the enhancement), and dismissed count 2 and the prior conviction allegation. The trial court then continued the matter to obtain a probation officer's report and for calculation of presentence custody credit which, if there was no dispute, would be included on the abstract of judgment. The trial court also said that it would direct the probation department to prepare a "short form report" that would accompany defendant to the California Department of Corrections and Rehabilitation and that would include any information required by the department.*fn3

On October 4, 2010, the probation officer's report was filed. The report recommended restitution fines of $220 in accordance with section 1202.4, subdivision (b), and section 1202.45. The report indicated that defendant was entitled to 71 days presentence credit (62 actual plus 9 conduct) as of October 4, 2010.

An abstract of judgment was filed on October 4, 2010. The abstract included the six-year prison term and the 71 days of presentence credit, but it did not include any fines or fees.

II

Appointed counsel asked this court to review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) After reviewing the record, we requested supplemental briefing from the parties on whether the trial court, in taking defendant's plea, misadvised defendant regarding ...


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