Opinion
A150569
02-06-2018
THE PEOPLE, Plaintiff and Respondent, v. LATROY DENARD CLINTON, SR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-604001)
Defendant Latroy Denard Clinton Sr. appeals from the sentence imposed on remand (see People v. Clinton (June 10, 2016, A140056) [nonpub. opn.]) for convictions following a jury trial of voluntary manslaughter (Pen. Code, § 192, subd. (a)-count 1), felon in possession of a firearm (former § 12021, subd. (a)(1)-count 2), and felony evasion of a police officer (Veh. Code, § 2800.2, subd. (a)-count 3). The jury also found, as to the manslaughter charge, that defendant personally used a firearm (§ 12022.5). Additionally, defendant was found to have served prison terms for three prior felony convictions (§ 667.5, subds. (a)-(b)) and to have suffered two prior "strike" convictions (§ 1170.12).
We take judicial notice of our prior opinion (Evid. Code, §§ 452, subd. (a) & 459, subd. (d)) and draw the operative facts therefrom.
All further statutory designations are to the Penal Code unless otherwise indicated.
Pursuant to the Three Strikes law, the trial court initially sentenced defendant to 50 years to life on the manslaughter conviction, 25-years-to-life sentence on the possession conviction (stayed under § 654), and 25 years to life, to be served consecutively, on the evasion conviction. On appeal, this court affirmed as to count 1, but remanded for resentencing as to counts 2 and 3. Following resentencing, defendant is now serving an indeterminate term of 33 years to life for voluntary manslaughter (count 1) and a consecutive determinate term totaling 18 years and four months. The determinate term of 18 years four months consists of a consecutive term of one year four months (one-third the midterm) on count 3 (count 2 having been stayed), and enhancements of 10 years for use of a firearm plus seven years for his prior convictions.
In his notice of appeal, defendant requested that the sentence be reviewed for accuracy. Defendant's appellate counsel subsequently filed a brief raising no issues, but asking this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but failed to do so within the allotted time period. Upon independent review of the record, we conclude no arguable issues are presented for review and affirm the sentence.
Defendant checked only the box marked "[o]ther" on his notice of appeal specifying, "I ask that the sentencing in this matter be reviewed to ensure accuracy of sentence."
Applying the Three Strikes law in our prior opinion, we stated "defendant had two prior strike-eligible convictions—the trial court sentenced defendant to 50 years to life on the manslaughter conviction (count 1). It sentenced him to 25 years to life on the felon in possession conviction (count 2), but stayed the sentence under section 654. It sentenced him to 25 years to life on the evasion conviction (count 3), to run consecutively to the sentence imposed for the manslaughter conviction. [¶] Prior to trial, the Three Strikes Reform Act (also often referred to as Proposition 36) took effect. 'Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The [Reform] Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.)' (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168; see also People v. Thurston (2016) 244 Cal.App.4th 644, 655.)" (People v. Clinton, supra, A140056.)
However, only one of defendant's convictions, for manslaughter (count 1), qualified as a serious or violent felony under the Three Strikes Reform Act, and as to that count, defendant was properly sentenced as a third striker. His other two convictions, however, for felon in possession and evasion (counts 2 and 3), were not serious or violent felonies under the Act. (§ 1170.12, subd. (b).)
Upon remand, the trial court provided all parties with a copy of what the court "believe[d] [wa]s the appropriate sentence based on the appellate court's decision." The court stated: "[Defendant], I'm going to resentence you on counts 2 and 3. Count 1 will remain the same, the [section] 192(a) upper term 33 years to life. Ten years for the [section] 12022.5—or .5(a). Three years consecutive for the [section] 667.5(a). Three years consecutive for the [section] 667.5(a). One year consecutive for the [section] 667.5(b). [¶] Count 2, instead of 25 to life is stayed pursuant to [section] 654 and will be the middle term which includes one strike based on the change in the law. So it would be the middle term doubled of four years. That will be stayed. . . . [¶] Count 3 . . . will be one-third the middle term of one year four months. [¶] So the total term is 33 years to life plus 18 years four months." Defense counsel claimed the sentence was confusing to him, but was "not disagreeing at this point." The trial court properly resentenced defendant in accordance with the remand instructions.
DISPOSITION
After review of the relevant record, we find no arguable issues and affirm the sentence.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.