People v. Humphrey

          APPEAL from a judgment of the Superior Court of San Diego County, No. SCS243881 Keri G. Katz, Judge. Affirmed.

          Dominick Humphrey, in pro. per.; John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Kristen Ramirez and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

          HUFFMAN, Acting P. J.

         On August 8, 2011, Dominick Humphrey pled guilty to four counts of robbery (Pen. Code, ^[1] § 211; counts 2, 3, 4, and 24). For three of these counts (counts 2, 3, and 4), Humphrey admitted that he used a deadly weapon (a knife) during the commission of the offenses within the meaning of section 12022, subdivision (b)(1) and used a firearm during the commission of one of the counts (count 24) within the meaning of section 12022.5, subdivision (a). Humphrey also admitted that he was 16 years old when he committed the crimes within the meaning of Welfare and Institutions Code section 707.

         On October 14, 2011, the trial court sentenced Humphrey to prison for 19 years, consisting of: (1) for count 24, the upper term of five years plus a consecutive 10-year term for the firearm enhancement; (2) for counts 2, 3, and 4, consecutive one-year terms for each count; and (3) consecutive four month terms for the deadly weapons enhancements for counts 2, 3, and 4.

         On November 22, 2017, five years into Humphrey's sentence, an employee of the California Department of Corrections and Rehabilitation (CDCR) wrote a letter to the superior court, stating that the abstract of judgment "may be in error, or incomplete[.]" On March 29, 2018, the trial court clarified that Humphrey was sentenced to 15 years for count 24 and the associated firearm enhancement and consecutive 16-month terms for counts 2, 3, and 4 (including their deadly weapon enhancements). An amended abstract of judgment was issued showing a sentence of 19 years in state prison.

         On April 30, 2018, Humphrey filed a motion to strike the firearm enhancement under Senate Bill No. 620. The trial court denied the motion because Humphrey's conviction became final before the enactment of Senate Bill No. 620.

         Humphrey timely filed a notice of appeal.

         Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, indicating that he had not been able to identify any arguable issue for reversal on appeal. Counsel asked this court to review the record for error as mandated by Wende. In reviewing the record, we discovered an issue to be briefed. As such, we requested the parties brief whether the trial court erred in finding Humphrey ineligible for relief under Senate Bill No. 620 after the court acted to correct the abstract of judgment.

         The parties filed the requested letter briefs.

         BACKGROUND

         At Humphrey's sentencing hearing on October 14, 2011, the trial court stated that it had reviewed the stipulated change of plea form and sentence, the probation report, the stipulated sentence report, and a "brief memo" regarding restitution. The court commented that it believed the correct sentence to be 19 years, not the 19 years four months set forth in the materials. Both the prosecutor and the defense attorney agreed with the court's assessment.

         After discussing restitution and denying probation, the court sentenced Humphrey as follows:

         "As to count 24, I'll impose a stipulated upper term of 5 years in state prison, added to that will be the stipulated upper range of 10 years for the Penal Code section 12022.5(a) finding that was admitted to. That will be a total term on count 24 of 15 years in state prison. [¶] At to counts 2, 3, and 4, each of which are also violations of Penal Code section 211, the court will impose a stipulated middle term of 3 years plus an additional 1 year for the Penal Code section 12022(B)(1) allegation. However, because they have agreed to be served consecutively, that will result in an additional term for each of counts 2, 3, and 4 of 1 year 4 months in state prison. So 15 years plus 1 year 4 months for each of counts 2, 3, and 4. That will be a total of 19 years in state prison."

         The original abstract of judgment, dated October 14, 2011, listed the total term in prison as 19 years. However, the component parts of the sentence related to each count and enhancement did not track what the court stated at the sentencing hearing. For example, the abstract listed five years for count 24 and one year four months each for counts 2, 3, and 4. In addition, it listed 10 years for the firearm enhancement under section 12022.5, subdivision ...