Opinion
A158867
05-08-2020
THE PEOPLE, Plaintiff and Respondent, v. KNUTE ZOLLO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. Nos. CR949959, CR950880, CR953511-A)
Pursuant to a negotiated plea agreement, defendant Knute Zollo was sentenced to 13 years four months in state prison after he pleaded no contest to one count of first degree robbery and admitted a prior strike and two probation violations. His appellate counsel has filed a brief in accordance with People v. Wende (1979) 25 Cal.3d 436, asking this court to independently examine the record to determine if there are any arguable issues that require briefing. Counsel declares that she wrote to defendant, informing him she was filing a Wende brief on his behalf and apprising him of his right to file a supplemental brief. He has not done so. We have conducted our examination, conclude there are no arguable issues requiring briefing, and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We derive the facts surrounding defendant's offenses from the preliminary hearing transcripts.
Case No. CR949959
On March 2, 2018, two Lake County deputy sheriffs were dispatched to a home in Clearlake Oaks after 911 received a call from the homeowner who said someone was banging on his door and trying to enter his home. When the deputies arrived, the homeowner reported that he had been awakened by someone banging on his door, demanding he open it, and threatening to kill him. He asked who it was, and the person identified himself as defendant. Scared for his life, the homeowner retrieved a handgun and kept it trained on the door until the deputies arrived. The homeowner said he knew defendant because defendant used to work for him, although he had not spoken to him for about a month.
The deputies arrested defendant at a nearby residence. He appeared intoxicated and smelled of alcohol at the time.
On March 26, the Lake County District Attorney charged defendant with felony criminal threats (Pen. Code, § 422, subd. (a)) and misdemeanor cruelty to an elder person (§ 368, subd. (c)).
All statutory references are to the Penal Code except where otherwise noted.
Case No. CR950880
On May 22, defendant was remanded into custody on an outstanding warrant and transported to the Lake County jail. A search of defendant during the booking process uncovered a package containing a usable amount of methamphetamine hidden in his shoe. Defendant claimed he forgot it was there.
On June 13, the Lake County District Attorney charged defendant with felony knowingly bringing drugs into a penal institution (§ 1054.5, subd. (b)).
Defendant's Pleas and Probation
On August 10, pursuant to a negotiated plea agreement, defendant pleaded no contest to felony criminal threats (CR949959) and knowingly bringing drugs into a penal institution (CR950880). The cruelty to an elder charge in CR949959 was dismissed.
As part of the plea, the court also dismissed a possession of drug paraphernalia charge in case no. CR950570 and terminated probation as unsuccessful in case no. CR944968. Neither case is the subject of this appeal. --------
On September 10, the court found defendant guilty on both counts. In accordance with the negotiated plea agreement, it suspended sentence and placed defendant on three years' probation. In CR949959, it ordered him to serve 165 days in county jail, with 83 actual and 82 conduct credits. In CR950880, it ordered him to serve 161 days in county jail, with 81 actual and 80 conduct credits. It ordered him to pay a restitution fine of $900 in CR949959 and $300 in CR950880 (§ 1202.4, subd. (b)); a restitution fine of $900 in CR949959 and $300 in CR950880, stayed unless defendant's probation was revoked (§ 1202.44); a $180 criminal justice administrative fee ($90 per case; Gov. Code, § 29550, subd. (c)); a $80 court operation assessment ($40 per case; § 1465.8); and a $60 criminal conviction assessment ($30 per case; Gov. Code, § 70373).
On December 11, the probation department filed a notice of probation violation, alleging defendant failed to report to probation as required by the terms of his probation.
On December 26, defendant admitted he had violated the terms of his probation. The court found him in violation of probation and reinstated him on probation subject to the following modification: in CR949959, 240 days in county jail with 91 actual and 90 conduct credits; in CR950880, 240 days in county jail, concurrent, with 89 actual and 88 conduct credits.
Case No. CR953511-A and Probation Violations in CR949959 and CR950880
On March 21, 2019, two Lake County deputy sheriffs were dispatched to Twin Pines Casino in Middletown in response to a report of two men engaged in an altercation. In the lobby, they encountered Modesto H., who had a cut on his thumb, scratches on his neck, and a bump and scratches on his head. Mr. H. reported the following: He had run into defendant, whom he had met before, at the casino and invited him back to his hotel room for drinks. They went to the room and were drinking beer when defendant asked if a friend could join them. Defendant's friend arrived, bringing methamphetamine with him. Defendant and his friend began taking the methamphetamine and pressured Mr. H. to do the same. Shortly after, defendant dropped his pants, fondled his testicles, and asked Mr. H. for $500. When Mr. H. refused to give him any money, defendant suddenly demanded that he give him all of his money, threatening to kill him if he did not hand it over. Mr. H. tried to leave the room, but defendant grabbed him, threw him to the ground, held a knife to his neck, and threatened to kill him. Thinking defendant was about to slit his throat, Mr. H. tried to wrestle the knife away from him, cutting his own thumb in the process. Mr. H. then told defendant to let him get up and he would give him his money. Mr. H. was able to escape from the room and contact casino security. In the struggle, defendant had pulled Mr. H.'s wristwatch off his wrist. Mr. H. subsequently discovered his cell phone and numerous other items were missing from his hotel room.
As the deputies were interviewing Mr. H. in the lobby, defendant showed up and sat down nearby. Mr. H. identified him as the man who tried to rob him. The deputies spoke with defendant, who gave the following account: He had been gambling in the casino when Mr. H. offered him some tequila. They went to Mr. H.'s hotel room, where they consumed shots of alcohol. Mr. H. was asking for drugs so defendant left and returned with a friend who brought drugs with him. After some time, defendant and his friend left. Realizing he had left a sweater in Mr. H.'s room, defendant and his friend went back to retrieve it. When they were back in the room, Mr. H. attempted to touch him sexually, and an altercation ensued, with defendant punching Mr. H. once or twice. Defendant claimed Mr. H. threatened him with a knife, and Mr. H.'s thumb was cut when defendant attempted to deflect it.
The deputies searched defendant and found Mr. H.'s watch and cell phone in his possession. A knife matching the description provided by Mr. H. was found on a pillar at the entrance of the casino.
On March 25, the Lake County District Attorney filed a new case against defendant (no. CR953511-A), charging him with the following six felonies: (1) first degree residential robbery (§ 211); (2) burglary (§ 459); (3) grand theft (§ 487, subd. (a)); (4) false imprisonment (§ 236); (5) criminal threats (§ 422, subd. (a)); and (6) assault with a deadly weapon likely to cause great bodily injury (§ 245, subd. (a)(1)). The complaint also alleged that defendant's conviction for criminal threats in CR949959 constituted a prior serious and/or violent felony conviction within the meaning of sections 667, subdivision (a)(1), 667, subdivision (d), and 1170.12, subdivision (b); he had prior serious or violent felony convictions in 2004 and 2013; and he served a prior prison term within the meaning of section 667.5, subdivision (a).
That same day, the probation department filed another notice of probation violation, alleging defendant had violated the terms of his probation in light of the events of March 21. Defendant's probation was summarily revoked.
Defendant's Plea in CR953511-A and Admissions of Probation Violations in CR949959 and CR950880
On June 19, pursuant to a negotiated plea, defendant pleaded no contest to first degree robbery and admitted a prior strike in CR953511-A and admitted probation violations in CR949959 and CR950880. The remaining charges and allegations in CR953511-A were dismissed.
On August 12, defendant filed a motion to withdraw his no contest plea in CR953511-A and the probation violation admissions. The motion was grounded in a claim that when he entered the plea, he was under the influence of prescription medication that impaired his judgment.
On August 19, defendant's motion came on for hearing. After hearing testimony from defendant and counsel who represented him when he entered the plea, the court denied the motion.
On September 3, the matter came on for sentencing. In CR953511-A, the court found defendant guilty of felony robbery and found true the prior strike allegation, and permanently revoked probation in CR949959 and CR950880. It also made the following findings: in CR949959, defendant was under the influence of an alcoholic beverage at the time he committed the offense; in CR950880, defendant was convicted of a drug-related offense; in CR953511-A, defendant was under the influence of a controlled substance at the time he committed the offense; and defendant had a demonstrated history of substance abuse.
The court then sentenced defendant to the agreed-upon sentence: 13 years four months in state prison, comprised of the six-year upper term on the robbery count, doubled to 12 years due to the strike, plus eight months (one-third the two-year mid-term) in CR949959 and eight months (one-third the two-year mid-term) in CR950880, both consecutive to the 12-year principal term.
The court also imposed the following fines and assessments:
CR953511-A: $300 restitution fine (§ 1202.4, subd. (b)); $300 restitution fine, stayed unless parole is revoked (§ 1202.45); $40 court operations assessment (§ 1465.8); $30 criminal conviction assessment (Gov. Code, § 70373); $90 criminal justice administrative fee (Gov. Code, § 29550, subd. (c)); $10 fine and $31 penalty assessment (§ 1202.5).
CR949959 and CR950880: all fines and fees previously ordered with the following modifications: restitution fine reduced to $300 (§ 1202.4, subd. (b)); $300 restitution fine previously ordered and stayed now imposed in light of probation revocation (§ 1202.44); and $300 restitution fine imposed and stayed unless parole is revoked (§ 1202.45).
Defendant was awarded the following presentence credits: CR953511-A: 167 actual and 25 days conduct; CR949959: 83 days actual and 12 days conduct; and CR950880: 41 days actual and six days conduct.
Defendant filed a timely notice of appeal in all three cases.
DISCUSSION
In accordance with our obligations pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record. That review does not disclose any arguable issues requiring brief. We thus affirm.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.