People v. Smith CA2/3

Opinion

Filed 9/10/26 P. v. Smith CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B342020

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA151263) v.

DERRICK ANDRE SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa P. Magno, Judge. Affirmed as modified. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Derrick Andre Smith appeals from a judgment of conviction following a no contest plea. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), Smith’s appellate counsel requested that we review the record and determine whether any arguable issues exist. We have reviewed the entire record and find no arguable issues exist. We direct the trial court to correct the abstract of judgment to accurately reflect the sentence imposed and otherwise affirm the judgment. On January 26 or 27, 2020, Smith encountered Linda M. at the Vermont Metro Station, pushed her to the ground, attempted to rape her, and took money from her.1 On June 15, 2020, Smith killed Janet Urbina. On June 18, 2020, Smith tackled Alonza S. from behind as she was walking down the street and raped her. On or about June 21, 2020, Smith killed Alexis Duvall. An October 2024 fourth amended information charged Smith with seven counts: assault with intent to commit a felony (Penal Code, § 220, subd. (a)(1); count 1); second degree robbery (id., § 211; counts 2 & 5); assault with means of force likely to cause great bodily injury (id., § 245, subd. (a)(4); count 3); forcible rape (id., § 261, subd. (a)(2); count 4); and murder (id., § 187, subd. (a); counts 6 & 7).2 The information also alleged that counts 6 and 7 were committed willfully, deliberately, and with premeditation within the meaning of section 189, subdivision (a); a multiple murder special circumstance allegation under section 190.2, 1 We take the following facts, cited by Smith, from the probation report and the operative information. 2 All undesignated statutory references are to the Penal Code.

2 subdivision (a)(3), for counts 6 and 7; that Smith committed the crimes alleged in counts 4, 5, 6, and 7 while released on bail, within the meaning of section 12022.1; and factors in aggravation under California Rules of Court, rule 4.421 for counts 1, 2, 3, 4, and 5. Smith pled no contest to all counts and admitted all of the charged allegations, special circumstances, and enhancements. The court found Smith guilty on all counts and found the related allegations true. The court sentenced Smith as follows: the midterm of four years on count 1; the midterm of three years on count 2; the midterm of three years on count 3, stayed pursuant to section 654; the midterm of six years on count 4; and the midterm of three years on count 5. The court ordered counts 2 and 5 to be served concurrently with the determinate term of 10 years on counts 1 and 4. As to counts 6 and 7, the court imposed a sentence of life without the possibility of parole. The court imposed and stayed two-year sentences on the section 12022.1 allegations as to counts 4, 5, 6, and 7. Smith timely appealed. He did not request or obtain a certificate of probable cause. Court-appointed appellate counsel filed an opening brief that raised no issues and asked this court to independently review the record pursuant to Wende, supra, 25 Cal.3d 436. We directed appellate counsel to send Smith the record and a copy of the opening brief. We also advised that within 30 days of the date of the notice, Smith could submit a supplemental brief or letter stating any ground for an appeal, contentions, or arguments he wished this court to consider. Appellate counsel submitted a declaration stating that counsel had informed Smith 3 of his right to file a supplemental brief and had sent him the appellate record. Smith did not file a supplemental brief. We have independently examined the record on appeal and are satisfied that no arguable issues exist, and Smith’s attorney has complied with the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 125–126; Wende, supra, 25 Cal.3d at pp. 441–442.) We direct one clerical correction to the abstract of judgment. The trial court imposed and stayed section 12022.1 bail enhancements as to counts 4, 5, 6, and 7. The determinate abstract of judgment erroneously omits the section 12022.1 enhancement as to count 5. “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The abstract of judgment must be corrected to reflect the sentence for the section 12022.1 enhancement on count 5, which the trial court stayed. (People v. Jones (2012) 54 Cal.4th 1, 89.)

4 DISPOSITION We modify the judgment as follows. The abstract of judgment must be corrected as to count 5 to reflect that a Penal Code section 12022.1 enhancement was imposed and stayed. We direct the trial court to amend the determinate abstract of judgment to reflect the above correction and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ADAMS, P. J.

We concur:

HANASONO, J.

ASHWORTH, J.* * Retired Judge of the El Dorado Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.