Filed 5/10/21 P. v. Hussain CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079372
Plaintiff and Respondent,
(Super. Ct. No. F18901450)
v.
SULTAN ABDULLAH HUSSAIN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Don Penner,
Judge.
Maureen M. Bodo, 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 Hill, P.J., Franson, J. and Peña, J.
Appointed counsel for defendant Sultan Abdullah Hussain asked this court to
review the record to determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief. Defendant
did not respond. We remand for correction of a clerical error in the abstract of judgment,
but we find no arguable error that would result in a disposition more favorable to
defendant. Accordingly, we affirm.
BACKGROUND
On February 25, 2018, defendant met with a man who was selling his Nissan in
Fresno. The man let defendant sit in the driver’s seat and start the engine. Defendant
then drove away with the Nissan. The man reported his Nissan as stolen.
Later the same day, defendant approached three women stopped at a gas station
with a Kia. Defendant got into the Kia’s driver’s seat and told the women inside the Kia
he had a gun and would shoot them unless they got out. The women ran and hid.
Defendant tried to start the Kia but was confused by the push-button ignition. He took a
cell phone from the Kia and went into the gas station’s mini-mart. He told the
two employees that he had a gun and needed someone to give him their keys. He went
behind the counter and took a set of keys. The employees tried to stop him, and
defendant struck one of them repeatedly. The employees pushed defendant out the door,
locked it, and called the police.
Outside, defendant tried to take several other vehicles. When a couple drove up in
a pickup truck, defendant took it and fled, leaving the stolen Nissan behind.
That night, San Luis Obispo deputies apprehended defendant when he was driving
the pickup erratically at high speeds. Fresno County deputies then took defendant into
custody.
2.
On October 1, 2018, the Fresno County District Attorney charged defendant with
carjacking (Pen. Code, § 215, subd. (a);1 count 1), attempted carjacking (§§ 664, 215,
subd. (a); count 2), two counts of second degree robbery (§ 211; counts 3 & 4), and
receiving a stolen vehicle (§ 496d, subd. (a); count 5).
On February 14, 2019, defendant pled no contest to all counts in exchange for an
indicated five-year sentence lid.
On April 11, 2019, the trial court held a Marsden2 hearing, as defendant requested,
but did not make a ruling because defendant stated he wished to retain private counsel.
On May 2, 2019, defendant had not hired private counsel. He waived his right to a
Marsden hearing and his right to change his plea. The trial court informed defendant it
would not be following its indicated sentence. Defendant declined the opportunity to
withdraw his plea and opted for a six-year term with credits. The court then sentenced
him to six years in prison, as follows: five years on count 1 and one consecutive year on
count 4. The court imposed concurrent terms on the remaining counts: two years
six months on count 2, three years on count 3, and two years on count 5. The court
awarded credits and imposed fines and fees, which it then suspended pursuant to
People v. Duenas (2019) 30 Cal.App.5th 1157.
On May 28, 2019, defendant filed a notice of appeal.
After reviewing the record, we find no arguable error on appeal that would result
in a disposition more favorable to defendant. We have, however, found a clerical error
that requires correction. On count 2, attempted carjacking, the trial court sentenced
defendant to the “middle term of 2.5 years or 30 months.”3 The minute order and
1 All statutory references are to the Penal Code.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3 The middle term of attempted carjacking is half the term of the offense itself (half
of five years is 2.5 years). (§ 215, subd. (b) [“Carjacking is punishable by imprisonment
in the state prison for a term of three, five, or nine years.”]; § 664, subd. (a) [“If the crime
3.
abstract of judgment erroneously reflect a concurrent term of two years five months,
rather than two years six months. We will remand with instructions to correct the clerical
error.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with
directions to amend the abstract of judgment to reflect a two year six month (not two year
five month) concurrent term on count 2 for attempted carjacking, and to forward copies
of the amended abstract to the appropriate entities.
attempted is punishable by imprisonment in the state prison, or by imprisonment pursuant
to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by
imprisonment in the state prison or in a county jail, respectively, for one-half the term of
imprisonment prescribed upon a conviction of the offense attempted.”].)
4.