People v. Tolen CA3

Filed 2/3/21 P. v. Tolen 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Lassen) ----

THE PEOPLE, C091434

Plaintiff and Respondent, (Super. Ct. No. CR037165)

v.

CHANCE DEAN TOLEN,

Defendant and Appellant.

Appointed counsel for defendant Chance Dean Tolen filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we will modify the judgment to correct sentencing errors and direct the trial court to issue an amended abstract of judgment. We affirm the judgment as modified.

1

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.) FACTUAL AND PROCEDURAL BACKGROUND Two deputy sheriffs found defendant digging outside a trailer. They were searching for defendant in connection with an investigation they were pursuing. When they approached defendant, they saw a bulge at his waist, which they believed to be a weapon. The deputies searched defendant and found a handgun in his waistband and brass knuckles in his back pocket. The deputies removed the magazine from the firearm and arrested defendant. The prosecution charged defendant with possession of a firearm by a convicted felon (Pen. Code, § 29800, subd. (a)(1)—count I),1 unlawful possession of ammunition (§ 30305, subd. (a)(1)—count II), unlawful carrying of a concealed weapon (§ 25400, subd. (a)(2)—count III), and possession of metal knuckles (§ 21810—count IV). After a trial, a jury found defendant guilty of the felon in possession of a firearm, unlawful carrying of a concealed weapon, and possession of metal knuckles counts, but not guilty of the unlawful possession of ammunition count. The court sentenced defendant to the upper term of three years in state prison for the felon in possession of a firearm count, plus a consecutive term of eight months (one- third the midterm) for the possession of metal knuckles count. The court also imposed a term of eight months (one-third the midterm) for the unlawful carrying of a concealed weapon count and stayed execution of the sentence under section 654. The court imposed a restitution fine in the amount of $300 (§ 1202.4) and waived court operations (§ 1465.8) and court facilities (Gov. Code, § 70373) assessments based on defendant’s ability to pay.