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THE PEOPLE, Plaintiff and Respondent, v. RICHARD FOSTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appellant Richard Foster appeals from a postjudgment order modifying the sentence imposed after he was convicted of first degree burglary. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues. After we ordered the record augmented, we gave counsel another opportunity to file a brief. Counsel again found no appealable issues, and so informed the court. Appellant was notified of his counsel's brief and subsequent notification, and was given leave to file his own brief or letter stating any grounds or argument he might wish to have considered, but he has submitted no brief or letter. We have reviewed the entire record and find no arguable issues.
BACKGROUND
A five-count felony information alleged that on March 28, 2008, appellant entered an inhabited dwelling occupied by Judy Huggins and Roger Cornwall with the intent to commit a felony, committed an assault against Huggins, and made criminal threats against Huggins and Cornwall. The information also alleged that a person, not an accomplice, was present at the time of the burglary within the meaning of Penal Code section 667.5, subdivision (c), and that appellant had suffered two prior felony convictions. On June 8, 2009, after the preliminary hearing, appellant entered into a plea bargain under which he pled no contest to count 1, first degree burglary in violation of Penal Code section 459. In addition, the remaining charges were dismissed, and the person-present allegation and prior convictions were stricken. Appellant agreed to the middle term for first degree burglary of four years in prison. (See Pen.Code, § 461.) The trial court sentenced appellant according to the plea bargain to four years in prison, but described count 1 as second degree commercial burglary. The minutes and abstract of judgment indicated that appellant was convicted of second degree burglary.
In July 2009, appellant moved to withdraw his plea. Appellant explained to the court that the day of his plea he had taken medication that lowered his blood pressure, that he felt pushed and hurried, and that he was innocent. The motion was denied July 31, 2009.
In January 2010, the Department of Corrections notified the trial court that the abstract of judgment and the courts minutes reflected a conviction of second degree burglary, with a sentence of four years, the middle term for first degree burglary, not second degree burglary. (See Pen.Code, § 461.)
A hearing on the issue was held March 8, 2010, at which time appellant filed a motion to correct the sentence to conform to the plea bargain. The trial court determined that the plea bargain was to plead to first degree burglary and to be sentenced to the middle term of four years for that offense. The trial court corrected the sentence accordingly, and issued an amended abstract of judgment. Appellant filed a timely notice of appeal March 24, 2010.
We conclude that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
FOOTNOTES
THE COURT: * FN*. BOREN, P. J., ASHMANN-GERST, J., CHAVEZ, J.
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Docket No: B223378
Decided: February 07, 2011
Court: Court of Appeal, Second District, California.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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