California Court of Appeals, Fourth District, First Division
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
Becerra, Attorney General, Kristen Ramirez and Daniel Hilton,
Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
August 8, 2011, Dominick Humphrey pled guilty to four counts
of robbery (Pen. Code,  § 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.
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.
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.
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.
timely filed a notice of appeal.
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.
parties filed the requested letter briefs.
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.
discussing restitution and denying probation, the court
sentenced Humphrey as follows:
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."
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 ...