Filed 8/28/20 P. v. Bates CA3
                                           NOT TO BE PUBLISHED


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 This opinion has not been certified for publication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.



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




 THE PEOPLE,

                    Plaintiff and Respondent,                                                  C090918

           v.                                                                   (Super. Ct. No. 18CR000335)

 ANDREA LEE BATES,

                    Defendant and Appellant.




         Appointed counsel for defendant Andrea Lee Bates asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Based on our review of the record, we will modify the
judgment to dismiss count one as contemplated by the parties’ plea agreement. Finding
no other arguable error that would result in a disposition more favorable to defendant, we
will affirm the judgment as modified.


                                                             1
                                              I
       Defendant drove in the wrong lane towards oncoming interstate traffic in February
2018. She collided with another vehicle, injuring the other driver. After the accident she
left her vehicle and went into a nearby vacant field where officers arrested her.
       The People charged defendant with driving under the influence causing injury
within 10 years of another driving under the influence offense (Veh. Code, §§ 23153,
subd. (f), 23560 -- count one), hit and run driving resulting in injury to another person
(Veh. Code, § 20001, subd. (b)(1) -- count two), and driving the wrong way on a divided
highway causing injury (Veh. Code, § 21651, subd. (c) -- count three). The trial court
declared a doubt as to her competency under Penal Code section 13681 and suspended
criminal proceedings. After considering the evaluations of two psychiatrists, the trial
court found defendant competent to stand trial and reinstated the proceedings.
       At the preliminary hearing in May 2018, the prosecutor dismissed count one and
defendant was held to answer on counts two and three (which were renumbered in the
subsequent information as counts one and two, respectively). The information further
alleged that defendant inflicted great bodily injury on the victim. (§ 12022.7, subd. (a)).
       The trial court held a hearing regarding defendant’s eligibility for pretrial
diversion under section 1001.36. In January 2019, the trial court found defendant met her
prima facie burden for section 1001.36 diversion eligibility and scheduled a further
hearing, but defendant withdrew her petition for diversion in May 2019.
       In September 2019, defendant made a Marsden motion2 to relieve her appointed
counsel. After a closed hearing, the trial court denied the motion.




1 Undesignated statutory references are to the Penal Code.

2 People v. Marsden (1979) 2 Cal.3d 118.


                                              2
       Defendant pleaded no contest to driving the wrong way on a divided highway
causing injury (Veh. Code, § 21651, subd. (c) -- count two of the information) and
admitted the great bodily injury enhancement in exchange for a maximum sentence of
four years four months in prison and dismissal of the remaining charges. The parties
stipulated that the preliminary hearing could serve as the factual basis for the plea and the
prosecutor said the plan would be to seek dismissal of count one at sentencing.
       Prior to sentencing, defendant asked the trial court to exercise its discretion under
section 1385 to dismiss the great bodily injury enhancement, and also to suspend
imposition of sentence in favor of probation. The People opposed the requests.
       At sentencing, the trial court declined to strike the enhancement and sentenced
defendant to four years four months in prison, consisting of the following: the low term
of 16 months for the driving offense, plus three years for the great bodily injury
enhancement. The trial court awarded defendant 740 days of presentence credit
(644 actual days and 96 conduct days) (§ 2933.1) and ordered defendant to pay a $600
restitution fine (§ 1202.4, subd. (b)), a $600 parole revocation fine (§ 1202.45), a $30
court facilities assessment (Gov. Code, § 70373), and a $40 court operations assessment
(§ 1465.8).
       The parties and the trial court did not mention dismissal of count one of the
information during the sentencing hearing as previously contemplated by the plea
agreement. Defendant did not request or obtain a certificate of probable cause.
                                              II
       Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.



                                              3
       Our review of the record indicates the plea agreement contemplated dismissal of
count one of the information but count one was not dismissed at sentencing. Because it
appears this was an inadvertent omission rather than an exercise of judicial discretion, we
may correct the omission on appeal. (In re Candelario (1970) 3 Cal.3d 702, 705-706;
People v. Segura (2008) 44 Cal.4th 921, 930-931 [trial court bound by terms of plea
agreement it accepts].) We will modify the judgment to dismiss count one of the
information, and affirm the judgment as modified. Because the abstract of judgment
reflects only defendant’s no contest plea to count two, and does not reference count one,
the abstract of judgment need not be amended.
       Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is modified to dismiss count one of the information. The judgment
is affirmed as modified.



                                                    /S/
                                                 MAURO, J.



We concur:



    /S/
BLEASE, Acting P. J.



    /S/
DUARTE, J.



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