People v. Harris CA4/1

Opinion

Filed 9/29/14 P. v. Harris CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D066166

Plaintiff and Respondent,

v. (Super. Ct. No. FV1901066)

RICHARD MONROE HARRIS,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Bernardino, Michael A. Smith,

Judge. Affirmed with directions.

Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

In December 2009, a jury found Richard Monroe Harris guilty of assault with a

deadly weapon (Pen. Code,1 § 245, subd. (a)(1), a serious felony (§§ 1192.7,

1 All further statutory references are to the Penal Code. subd. (c)(31), 1170.126, subd. (e)(1)). In a bifurcated proceeding, the court found true

allegations of a serious felony prior conviction (§ 667, subd. (a)(1)), four prior prison

terms (§ 667.5, subd. (b)) and three prior strike convictions (§ 667, subds. (b)-(i)). In

2010, the court sentenced Harris to prison for 25 years to life plus eight years: 25 years

to life, with the possibility of parole, for assault with a deadly weapon; five years for the

serious felony prior; and one year each for three of the prison priors.2 In 2011, the court

dismissed one of the strikes. In 2014, Harris filed petitions for resentencing

(§ 1170.126). The court denied the petitions. Harris appeals. We affirm.

BACKGROUND

In May 2009, Harris assaulted the victim with a knife, stabbing him in the arm, the

thigh, the back and twice in the forehead. With the second stab in the forehead, the

knife's blade penetrated the victim's skull, separated from the handle and remained

embedded in the victim's forehead until later removed. The stab in the back punctured

the victim's lung.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and

proceedings below. Counsel presents no argument for reversal, but asks this court to

2 The court stayed execution of a one-year sentence for a prison prior in case No. SCE278028. "Once the prior prison term is found true within the meaning of section 667.5[, subdivision ](b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Because the conviction in case No. SCE278028 also gave rise to the serious felony prior for which Harris received a five-year sentence, this prison prior should have been stricken. (People v. Jones (1993) 5 Cal.4th 1142, 1144-1145, 1150, 1153.) We direct the trial court to amend the abstract of judgment accordingly. review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436

(Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel

mentions as possible but not arguable issues (1) whether the denial of the section

1170.126 petition is an appealable order and (2) whether the court erred by denying the

petition.

We granted Harris permission to file a brief on his own behalf. He has not

responded. A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders,

supra, 386 U.S. 738, including the possible issues listed pursuant to Anders, has disclosed

no reasonably arguable appellate issues. Harris has been competently represented by

counsel on this appeal.

DISPOSITION

The orders are affirmed. The trial court is directed to (1) amend the abstract of

judgment to reflect a stricken, rather a stayed, prison prior in case No. SCE278028; and

(2) forward the amended abstract of judgment to the Department of Corrections and

Rehabilitation.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.