Filed 6/14/21 P. v. Wooley 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081197
Plaintiff and Respondent,
(Fresno Super. Ct. No. F18901813)
v.
DARRYL DANIEL WOOLEY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Glenda S.
Allen-Hill, Judge.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P.J., Levy, J. and Detjen, J.
INTRODUCTION
Appellant and defendant Darryl Daniel Wooley was sentenced to 13 years
pursuant to a negotiated disposition in 2018 and did not file a notice of appeal. In 2020,
he filed a motion to recall and resentence him, based on an enhancement that was not
imposed as part of his sentence, and the motion was denied. On appeal, his counsel has
filed a brief that summarizes the facts with citations to the record, raises no issues, and
asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d
436 (Wende).) We affirm.
PROCEDURAL BACKGROUND
On March 15, 2018, a felony complaint was filed in the Superior Court of Fresno
County charging defendant with count 1, felony infliction of corporal injury on Jane Doe
on or about November 1, 2017 (Pen. Code, § 273.5, subd. (a)),1 and in counts 2 through
10, felony dissuading a witness from prosecuting a crime on November 2, 7, 8, and 15,
2017 (§ 136.1, subd. (b)(2)), with one prior strike conviction (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)) and one prior prison term enhancement (§ 667.5, subd. (b)).
On May 10, 2018, defense counsel advised the court that defendant was going to
enter in a negotiated disposition and plead no contest to count 1, infliction of corporal
injury, and count 2, dissuading a witness on November 2, 2017. Counsel further stated
defendant would admit the prior strike conviction for residential burglary, “and of course
that goes along with it being also a serious prior” felony enhancement under section 667,
subdivision (a).
Defense counsel stated the stipulated term was 13 years, based on second strike
terms of four years for both counts 1 and 2, and the “serious strike prior would be five
years.” The prosecutor concurred with defense counsel’s statement about the negotiated
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
disposition. The parties stipulated to the police reports and preliminary hearing transcript
as the factual basis for the plea.
Thereafter, defendant pleaded no contest to counts 1 and 2, and he admitted the
prior serious or violent felony conviction alleged as a strike for residential burglary in
2012. The court advised defendant that it was also alleged that he “suffered a prior
serious felony conviction within the meaning of … Section 667(a)(1),” based on the same
residential burglary conviction alleged as a strike. Defendant admitted the allegation.2
The court granted the People’s motion to dismiss count 3 through 10 and the prior prison
term enhancement.
2 “ ‘[I]n addition to the statutory requirements that enhancement provisions be
pleaded and proven, a defendant has a cognizable due process right to fair notice of the
specific sentence enhancement allegations that will be invoked to increase punishment
for his crimes.’ [Citation.] However, ‘[d]efects in the form of an accusatory pleading are
not a ground to reverse a criminal judgment in the absence of significant prejudice to a
defendant. [Citations.]’ ” (People v. Pettie (2017) 16 Cal.App.5th 23, 82.)
In this case, under the heading, “Prior Serious Felony Convictions (Strikes),” the
complaint alleged pursuant to section 667, subdivisions (b) through (i) and section
1170.12, subdivisions (a) through (d), that defendant suffered a prior conviction of a
“serious or violent felony,” based on violating sections 459 and 460, residential burglary,
in Fresno County Superior Court case No. F11906318 on April 18, 2012. At the plea
hearing, defendant admitted that he suffered the residential burglary conviction in 2012
and that it was a strike, and also that the same burglary conviction was “a prior serious
felony conviction within the meaning of … Section 667(a)(1),” consistent with the
negotiated disposition.
Defendant received sufficient notice of the court’s oral amendment in this case,
that was part of the parties’ negotiated disposition to add a consecutive term of five years
for a prior serious felony enhancement pursuant to section 667, subdivision (a), consistent
with the stipulated term of 13 years, and the enhancement was based on the same prior
conviction alleged as a strike. “Oral amendment of an accusatory pleading may suffice
for statutory and due process purposes. [Citation.] ‘The informal amendment doctrine
makes it clear that California law does not attach any talismanic significance to the
existence of a written information.’ [Citation.]” (People v. Pettie, supra, 16 Cal.App.5th
at p. 82.)
3.
On June 12, 2018, the court imposed an aggregate term of 13 years, that was the
indicated sentence in the negotiated disposition, based on the lower term of two years for
count 1, doubled to four years as the second strike term; a fully consecutive midterm of
two years for count 2, doubled to four years as the second strike term; and a consecutive
term of five years for the prior serious felony enhancement. The court issued and served
defendant with a criminal protective order prohibiting contact with the victim until
June 12, 2021.
Defendant did not file a notice of appeal from the judgment entered on June 12,
2018, and the judgment became final on August 11, 2018. (Cal. Rules of Court, Rule
8.308.)
Postjudgment motions
On January 10, 2020, defendant filed, in pro. per., an ex parte motion for recall
and resentencing in the trial court, requesting dismissal of a prior prison term
enhancement allegedly imposed as part of his sentence based on the enactment of Senate
Bill No. 136. (2019–2020 Reg. Sess.)
On February 3, 2020, the trial court denied the motion because a prior prison term
enhancement was not found true or imposed as part of defendant’s sentence, and his case
was final.
On May 19, 2020, defendant filed a notice of appeal from the judgment entered on
“May 10, 2018.” Defendant requested a certificate of probable cause because his
sentence was illegal, and asserted the five-year term imposed for the prior serious felony
enhancement must be stricken as a result of the enactment of Senate Bill No. 1393.
(2017–2018 Reg. Sess.) It does not appear that the trial court ruled upon the request for a
certificate of probable cause.
DISCUSSION
While the trial court did not grant defendant’s request for a certificate of probable
cause, the issue defendant raised in that request is meritless. Effective January 1, 2019,
4.
sections 667 and 1385 were amended by Sen. Bill 1393 to remove the prohibitions on
striking or dismissing a prior serious felony enhancement. (See Stats. 2018, ch. 1013,
§§ 1–2; People v. Garcia (2018) 28 Cal.App.5th 961, 971; People v. Zamora (2019) 35
Cal.App.5th 200, 208.)
“… Senate Bill 1393 applies retroactively to all cases or judgments of conviction
in which a five-year term was imposed at sentencing, based on a prior serious felony
conviction, provided the judgment of conviction is not final when Senate Bill 1393
becomes effective on January 1, 2019.” (People v. Garcia, supra, 28 Cal.App.5th at
pp. 971–972, 973, italics added.) Defendant’s judgment of conviction and sentence were
imposed on June 12, 2018, he did not file a notice of appeal and, as noted by the trial
court, his judgment became final on August 11, 2018, before Senate Bill 1393 became
effective. (People v. McKenzie (2020) 9 Cal.5th 40, 46–47; Cal. Rules of Court, Rule
8.308.)
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on October 20, 2020, we
invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
5.