Filed 1/16/20 P. v. Durbin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DUSTIN DWAYNE DURBIN,

Defendant and Appellant.

E073600

(Super.Ct.No. RIF1705169)

OPINION

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed.

Kendall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

On December 13, 2017, a complaint charged defendant and appellant Dustin Dwayne Durbin with corporal injury resulting in a traumatic injury on a spouse or former spouse under Penal Code section 273.5, subdivision (a) (count 1); and assault with force likely to produce great bodily injury under Penal Code section 245, subdivision (a) (count 2). The complaint also alleged four prior offenses under Penal Code section 667.5, subdivision (b), and a prior strike conviction.

On February 27, 2018, defendant either pled guilty or no contest to corporal injury of a spouse resulting in a traumatic injury under Penal Code section 273.5, subdivision (a) (count 1). Defendant also admitted the strike prior. On March 29, 2018, the trial court orally sentenced defendant to six years in state prison as follows: the midterm of three years for count 1, doubled due to the strike prior. The court then dismissed the remaining charges. The original abstract of judgment and minute order correctly noted that defendant was sentenced to six years. However, both documents incorrectly described that defendant was sentenced to the low term instead of the midterm.

On July 5, 2018, without the presence of a court reporter, defendant, defense counsel, or prosecutor, the trial court vacated the original sentence pursuant to a letter from the California Department of Rehabilitation and Correction. The court then sentenced defendant to the same six years in state prison but indicated that defendant was sentenced to the midterm. In all other aspects, the sentence remained the same. On July 19, 2019, an amended abstract of judgment was filed reflecting the change of the sentence from low term to midterm.

One year later, on July 2, 2019, defendant filed a “motion for transcripts of prior proceedings in their inclusive language and minutes of proceedings and copy of court records.” (All caps omitted.) In support of the motion, defendant filed a declaration wherein he declared that he intended “to seek relief in a higher court by means of a writ” because he believed that the ruling was erroneous, or the court abused its discretion. Defendant also stated that “in order to properly prepare a petition for review” it was necessary “that the transcripts of the prior proceedings in their inclusive language be prepared as well as all court record and minutes pertinent to the above stated case.” On July 2, the trial court denied defendant’s motion.

On August 30, 2019, defendant filed a notice of appeal of the “denial of transcripts.” (All caps omitted.)

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issue to assist the court in its search of the record for error: “Did the trial court err in denying defendant’s motion for transcripts? (See generally, Mayer v. Chicago (1971) 404 U.S. 189; People v. Reese (2017) 2 Cal.5th 600.)”

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error, considered the issues listed by appellate counsel, and find no arguable issue for reversal on appeal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.