People v. Allen CA3

Filed 1/31/23 P. v. Allen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C095985

Plaintiff and Respondent, (Super. Ct. No. 22CF00288)

v.

EDWARD SILLEMON ALLEN,

Defendant and Appellant.

Defendant Edward Sillemon Allen appeals from his burglary conviction and argues the trial court erroneously imposed the upper term. Defendant further contends the trial court erred in imposing a three-year parole term. We will modify the judgment to correct an erroneous fine and affirm as modified. FACTUAL AND PROCEDURAL BACKGROUND In May 2019, the victim reported to police that his apartment had been burglarized and he was missing several items, including headphones, a speaker, a machete,

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ammunition, two ammunition magazines, and a cell phone. Police found defendant’s DNA at the scene. Defendant was charged with first degree burglary. (Pen. Code, § 459.)1 It was further alleged he had a prior strike. (§§ 667, subd. (d), 1170.12, subd. (b).) In February 2022, defendant pleaded no contest to the burglary charge. The strike allegation and a separate misdemeanor case not at issue in this appeal were dismissed with a Harvey waiver.2 During the plea, defendant stipulated to the factual basis from the probation report. Defendant further agreed that there “could be aggravating factors in this case.” In March 2022, the trial court denied defendant’s request for probation and sentenced him to state prison for the upper term of six years. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a corresponding $300 parole revocation fine (suspended unless parole is revoked) (§ 1202.45), and a $39 theft fine (§ 1202.5). The court further noted that, “[p]ursuant to [section 3000, subdivision (b)] of the penal code, [defendant] will be on parole for three years following his release.” Neither the minute order nor the abstract of judgment lists a three-year parole term. During the plea hearing, defense counsel noted defendant had not stipulated to any aggravating factors in the case, although he acknowledged “the court’s ability to look at [defendant’s criminal] record.” The prosecutor argued the upper term was appropriate because defendant had an extensive criminal history with 10 prior felony convictions. In imposing the upper term, the court noted defendant did not stipulate to the existence of aggravating factors, nor did a jury find any aggravating factors to be true beyond a reasonable doubt. Still, the court explained, the upper term was warranted because