Opinion
C089746
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. GARY LOWELL FITZHUGH, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCCRCRF20181157)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. One evening in July 2018, defendant Gary Lowell Fitzhugh, Jr., entered the bed of a 75-year-old woman, grabbed her breast from behind, and when she tried to get up, prevented her from doing so by pulling on her breast as he remained in the bed. Later, defendant made slashing motions with a knife at, and threatened to kill, police officers who tried to arrest him.
In January 2019, defendant filed and then withdrew a motion for substitution of counsel.
In March 2019, defendant pleaded guilty to one count of first degree burglary (Pen. Code, § 459), one count of sexual battery by restraint (§ 243.4, subd. (a)), and one count of exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8). Defendant also admitted a prior strike conviction. In exchange for his pleas, the parties agreed that other pending charges would be dismissed, and defendant would serve 16 years in prison, calculated as follows: 12 years for first degree burglary (the upper term, doubled for the prior strike), and two years each for the other two counts (one-third the middle term for each, doubled for the prior strike).
Undesignated statutory references are to the Penal Code. --------
At the sentencing hearing, the trial court sentenced defendant to a term of imprisonment consistent with the parties' agreement detailed above, and imposed the following fines and fees: a $10,000 restitution fine pursuant to section 1202.4, subdivision (b); a suspended $10,000 fine pursuant to section 1202.45; $120 in court operations assessments pursuant to section 1465.8; $90 in criminal conviction assessments pursuant to Government Code section 70373; and a $10 crime prevention fee pursuant to section 1202.5, amounting to a total fee of $39 with applicable assessments.
The trial court ordered defendant to register as a sex offender pursuant to section 290, and calculated 361 days of custody credits.
Defendant timely appealed and did not seek a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
But we note an omission in the abstract of judgment that must be corrected: the trial court properly ordered lifetime sex offender registration, but the abstract of judgment, paragraph 11, does not reflect this.
DISPOSITION
The judgment is affirmed. The clerk of the trial court is directed to prepare a corrected abstract of judgment reflecting imposition of sex offender registration, and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
HOCH, J.