People v. Labarr CA5

Filed 3/29/24 P. v. Labarr CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F086866 Plaintiff and Respondent, (Super. Ct. No. F20905209) v.

PHILLIP EUGENE LABARR, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and Detjen, J.

INTRODUCTION This case returns to this court following remand for resentencing. (People v. Labarr (Mar. 14, 2023, F082622) [nonpub. opn.] (Labarr).) Appointed counsel for defendant Phillip Eugene Labarr asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel also requests that we order clerical corrections to the abstract of judgment. Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, arguing his speedy trial rights were violated and the victim’s mental illness was not adequately investigated. We will order clerical corrections to the abstract of judgment as explained below. However, finding no arguable error that would result in a disposition more favorable to defendant, we otherwise affirm. BACKGROUND Defendant was convicted of misdemeanor assault (Pen. Code,1 § 240; count 1), battery causing serious bodily injury (§ 243, subd. (d); count 2), assault with intent to commit rape (§ 220, subd. (a)(1); count 3), criminal threats (§ 422; count 4), and a second count of misdemeanor assault (§ 240; count 5). Defendant admitted two prior “strike” convictions within the meaning of the Three Strikes law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). The trial court sentenced defendant on each of counts 3 and 4 to consecutive terms of 25 years to life. On count 2, the court imposed and stayed, pursuant to section 654, an upper-term sentence of eight years. On counts 1 and 5, defendant was sentenced to county jail terms with time served. (Labarr, supra, F082622.) On appeal, we reversed the convictions on counts 1 and 5 as necessarily included within the conviction on count 3. Accordingly, we vacated the sentence and remanded for a full resentencing. We otherwise affirmed. (Labarr, supra, F082622.)