People v. Whitmer CA3

Filed 10/8/24 P. v. Whitmer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C099658

Plaintiff and Respondent, (Super. Ct. Nos. CRF12-0000623, v. CRF13-0000195)

BRAD ALLEN WHITMER,

Defendant and Appellant.

Defendant Brad Allen Whitmer appeals following a resentencing pursuant to Penal Code section 1172.75.1 Appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 raising no arguable issues and asking this court to conduct an independent review of the record. Although not required to independently review the record in these circumstances (see People v. Delgadillo (2022) 14 Cal.5th 216, 226 (Delgadillo)), we have done so. Our discretionary review of the postconviction record reveals no arguable errors favorable to Whitmer. We therefore affirm. We have, however, identified two clerical errors in the abstract of judgment. We direct the trial court to correct the abstract

1 Undesignated statutory references are to the Penal Code.

1

of judgment to delete the two prior prison term enhancements and to include the accurate number of credits for actual days served. BACKGROUND In 2013, in case number CRF12-0000623, a jury found Whitmer guilty of recklessly evading a peace officer (Veh. Code, § 2800.2, subd. (a)), driving a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)), and resisting a peace officer (§ 148, subd. (a)(1)). Whitmer admitted that he had served two prior prison terms and that he had a prior strike. Then, in case number CRF13-0000195, Whitmer pleaded no contest to assault with a deadly weapon (§ 245, subd. (a)(1)) and admitted that he inflicted great bodily injury on a person other than an accomplice (§ 12022.7, subd. (a)) and that he had suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior strike. The trial court sentenced Whitmer to eight years (the upper term doubled due to the prior strike) for the assault, 16 months (one-third of the middle term doubled due to the prior strike) each for the evasion conviction and for unlawfully taking a vehicle, a concurrent term of one year for the misdemeanor offense of resisting a peace officer, three years for the great bodily injury enhancement, five years for the prior serious felony enhancement, and one year for each of the two prior prison terms. His aggregate sentence was 20 years eight months. In 2022, the Department of Corrections and Rehabilitation identified Whitmer as a person serving a sentence that includes a prior prison term enhancement. Pursuant to section 1172.75, the trial court dismissed Whitmer’s one-year terms based on his two prior prison term enhancements and proceeded to resentence him. Whitmer argued that the court should impose the lower term for the assault conviction, strike his remaining enhancements, and dismiss the prior strike. The trial court reimposed the same sentence on the remaining felony convictions and enhancements, resulting in an aggregate sentence of 18 years eight months. In