People v. Tomblinson CA3

Filed 5/13/16 P. v. Tomblinson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C078861

Plaintiff and Respondent, (Super. Ct. No. 11F1859)

v.

TOMAS WILLIAM TOMBLINSON,

Defendant and Appellant.

Defendant Tomas William Tomblinson was incarcerated for four convictions, and sought resentencing under Proposition 47 (Pen. Code, § 1170.18)1 as to one—possession of a controlled substance. The trial court reduced this conviction to a misdemeanor and sentenced defendant on his remaining convictions to the same total prison term as his prior sentence by increasing the sentence for one of his other convictions. At the resentencing hearing, the court did not mention any previously imposed fees and fines.

1 Undesignated statutory references are to the Penal Code.

1

On appeal, defendant contends: (1) the trial court erred because section 1170.18, subdivision (e), bars a court from increasing the length of the term on any count above what was ordered at the original sentencing hearing; (2) if we find that he forfeited this first argument by failing to raise it in the trial court, his trial counsel provided ineffective assistance; and (3) he is entitled to have the notations in the minute order and abstract of judgment indicating that he owes restitution and parole revocation fines stricken because those notations constitute clerical error. Assuming defendant’s first argument was not forfeited, we nonetheless reject it because subdivision (e) is not susceptible to an interpretation that precludes courts from making any upward adjustment to convictions outside the scope of Proposition 47. Because we reach the merits of this claim, we need not address defendant’s second argument regarding ineffective assistance of counsel. We also decline to remove the restitution and parole revocation fines from the minute order and abstract of judgment. I. BACKGROUND In 2011, in Shasta County Superior Court case No. 11F1859 (case one), as part of a negotiated plea agreement, defendant was convicted of possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) He also admitted to a 1996 arson conviction as an enhancement. (§ 1170.12.) In 2013, in case No. 12F8026 (case two), defendant pleaded guilty to possession of a firearm by a felon. (§ 29800, subd. (a).) He again admitted to the 1996 arson conviction as an enhancement. (§ 1170.12.) He also admitted to violating his probation in case one. In April 2014, in case No. 13F1725 (case three), defendant pleaded no contest to failure to appear in case two. (§ 1320, subd. (b).) In July 2014, the court sentenced defendant to a total term of six years in prison: The midterm of two years doubled to four years in case two; one-third the midterm of eight months doubled to 16 months in case one; and one-third the midterm of eight