Filed 3/11/16 P. v. Vargas 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C079782

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62132054)

         v.

LEONARDO TORRES VARGAS,

                   Defendant and Appellant.




         Appointed counsel for defendant Leonardo Torres Vargas has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would
result in a disposition more favorable to defendant, we will affirm the judgment.




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                                              I
        We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
        Defendant was charged with felony carjacking (Pen. Code, § 215, subd. (a))1 and
misdemeanor resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)). The
complaint alleged defendant personally used a firearm during commission of the
carjacking. (§§ 12022.5, subd. (a), 12022.53, subd. (b).)
        On April 2, 2015, defendant entered a negotiated plea of no contest to carjacking
and admitted the firearm enhancement in exchange for dismissal of the remaining charge
and a sentencing lid of 15 years, giving the trial court the option of imposing either the
lower term (three years) or the middle term (five years) on the carjacking count. The
factual basis for the plea was as follows: On July 27, 2014, defendant pointed a loaded
firearm at the victim and demanded the victim’s car keys. Defendant then took the
victim’s keys and fled in the victim’s vehicle.
        On May 20, 2015, at defendant’s request, the trial court relieved retained counsel
as attorney of record and appointed a public defender to determine whether there were
grounds for a motion to withdraw the plea and to represent defendant for the duration of
the case.
        On July 2, 2015, defendant filed a motion to withdraw his plea on the ground of
ineffective assistance of counsel. In particular, the motion argued that defendant’s former
trial counsel misled him to believe the section 12022.53, subdivision (b) firearm
enhancement applied to defendant’s crime when, according to defendant, section
12022.53 enhancements refer only to gang-related crimes and therefore did not apply to
his crime, which was not gang related. In support of the motion, defendant wrote a letter




1   Undesignated statutory references are to the Penal Code.

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to the court claiming he was lied to and manipulated by his former defense counsel
regarding the section 12022.53, subdivision (b) enhancement. The letter stated that,
based on defendant’s own research, defendant believed section 12022.53, subdivision (b)
only applied to persons “who violated subdivision (b) of section 186.22.”
       The prosecution opposed the motion, arguing defendant failed to demonstrate
good cause to withdraw his plea in that he failed to demonstrate he received inadequate
legal representation or entered his plea based on inadvertence, ignorance, or mistake, and
his erroneous belief that section 12022.53, subdivision (b), requires gang-related conduct
was insufficient to establish he did not freely and knowingly enter his plea.
       After considering the parties’ written and oral arguments, the trial court concluded
defendant failed to show good cause and denied the motion.
       The court sentenced defendant to an aggregate term of 15 years in state prison
comprised of five years (the upper term) for the carjacking offense, plus a consecutive
10-year term for the firearm enhancement. The misdemeanor count was dismissed in the
interest of justice. The court awarded defendant 399 days of presentence custody credit
(347 actual days plus 52 conduct credits), and imposed a $2,000 restitution fine
(§ 1202.4, subd. (b)), a $2,000 parole revocation restitution fine stayed pending
successful completion of parole (§ 1202.45), a $40 court operations assessment
(§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), and victim
restitution in the amount of $10,257.30.
       Defendant filed a timely notice of appeal. He did not request a certificate of
probable cause.
                                             II
       We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d 436,
requesting the court to review the record and determine whether there are any arguable
issues on appeal. Defendant was advised by counsel of the right to file a supplemental

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brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed,
and we received no communication from defendant.
       We note one small discrepancy between the trial court’s oral pronouncement of
judgment, the minute order, and the abstract of judgment. The court orally imposed
victim restitution in the amount of $10,257.30. The sentencing minute order reflects an
amount of “$10,257.70.” The abstract of judgment reflects an amount of “$10,257.”
Where there is a discrepancy between the oral pronouncement of judgment and the
minute order or the abstract of judgment, the oral pronouncement controls. (People v.
Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.)
Recognizing the discrepancy is a minor one, for purposes of consistency and accuracy we
will nonetheless direct the trial court to amend the abstract accordingly.
       Having undertaken an examination of the entire record pursuant to Wende, we find
no arguable error that would result in a disposition more favorable to defendant.
                                      DISPOSITION
       The judgment is affirmed. The trial court is directed to amend the abstract of
judgment to reflect victim restitution in the amount of $10,257.30, and to forward a copy
of the amended abstract to the Department of Corrections and Rehabilitation.


                                            /s/
                                          Blease, Acting P. J.


We concur:


         /s/
       Hull, J.


        /s/
       Murray, J.



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