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In re F.R.

California Court of Appeals, Fifth District
Apr 24, 2009
No. F055590 (Cal. Ct. App. Apr. 24, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Merced County No. J1412, Thomas S. Burr, Commissioner.

Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

THE COURT

Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

PROCEDURAL BACKGROUND

On April 7, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a) alleging appellant, F.R., committed kidnapping (Pen. Code, § 207, subd. (a), count one), false imprisonment (§ 236, count two), making criminal threats (§ 422, count three), evading a peace officer (Veh. Code, § 2800.2, subd. (a), count four), and probation violations (Welf. & Inst. Code, § 777, count five). On April 17, 2008, a first amended subsequent petition (amended petition) was filed, but count five was changed to assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)). Additional allegations were added for two counts of misdemeanor hit and run (Veh. Code, § 20002, subd. (a), counts six & seven), misdemeanor driving without a valid driver’s license (Veh. Code, § 12500, subd. (a), count eight), no proof of financial responsibility (Veh. Code, § 16028, subd. (c), count nine) and violation of probation (count ten). The amended petition further noticed appellant that the prosecutor was seeking to have him committed for a maximum term of confinement of 13 years, eight months for his previously sustained petitions.

Unless otherwise indicated, all statutory references are to the Penal Code.

Appellant had the following prior juvenile adjudications. We have included the amount of commitment time to be aggregated for each offense in parenthesis. In March 2006, appellant admitted felony allegations that he committed assault with force likely to cause great bodily injury (§ 245, subd. (a)(1), one year) and participation in a criminal street gang (§ 186.22, subd. (a), eight months). In October 2006, appellant admitted a misdemeanor allegation of obstructing a peace officer (§ 148, subd. (a), four months). In April 2007, appellant admitted a misdemeanor battery (§ 242, two months). In October 2007, appellant admitted committing misdemeanor battery (two months) and obstructing a peace officer (four months). In December 2007, appellant admitted an allegation that he feloniously committed a battery causing great bodily injury (§ 243, subd. (d), one year). These were treated as subordinate terms at the disposition hearing and were aggregated to appellant’s maximum term of confinement with his most recent offenses. Appellant also had several violations of his probation during his wardships.

On April 18, 2008, appellant entered into a plea agreement in which he would admit counts one, four, and five as felonies. Count five would be admitted as a serious felony conviction within the meaning of the three strikes law. The parties stipulated there was a factual basis for the plea. Appellant’s maximum term of confinement would be 13 years four months in the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). The remaining allegations were to be dismissed with the right to comment on counts six and seven at the disposition hearing.

DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, which formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.

The court advised appellant of his rights, which appellant waived. The court explained the consequences of appellant’s plea. Appellant admitted counts one, four, and five. Appellant admitted count five as a serious felony within the meaning of the three strikes law. The remaining allegations were dismissed with the right to comment on counts six and seven.

On May 2, 2008, the juvenile court committed appellant to DJF for a maximum term of confinement of 13 years four months with custody credits of 377 days. The juvenile court’s commitment order to DJF lists a maximum time of commitment of 13 years four months, which is consistent with the plea agreement and the juvenile court’s order at the disposition hearing.

The juvenile court’s commitment order to DJF lists a maximum time of commitment of 13 years four months, which is consistent with the plea agreement and the juvenile court’s order at the disposition hearing. Appellant’s maximum term of confinement on the newest allegations, with kidnapping as the principle term, is nine years eight months. The maximum term of confinement for the prior offenses is three years eight months. Aggregated with the offenses noticed in the amended petition from previously sustained allegations, appellant’s maximum term of confinement would be 13 years four months. The attachment to commitment order, however, has an accounting of time for all of the aggregated counts from prior dispositions and this disposition that adds up to 14 years.

The attachment to the commitment order, however, has an accounting of time for all of the aggregated counts from prior dispositions and this disposition that adds up to 14 years. The first error occurs on page one of the attachment where two months is added to appellant’s term of confinement based on a violation of probation in 2006. This violation of probation was not noticed as an offense to be aggregated in the amended petition. This allocation of time should be removed from the attachment. On page two of the attachment, there is a designation of six months being aggregated to appellant’s term of confinement for resisting arrest in 2007. To achieve a maximum term of confinement of 13 years four months, pursuant to the plea agreement, the time allocated for this offense must also be removed from the attachment to the commitment order.

The juvenile court used form JV-732 pursuant to California Rules of Court, rule 5.805(1). The first entries on pages one and two of the form correctly set forth the times of commitment for adjudicated offenses in 2006 and correctly set forth the maximum term of commitment.

The accounting in the amended abstract of judgment is clearly clerical error. Clerical errors that do not accurately reflect the pronouncements of the trial court, or in this case the juvenile court, can be corrected on appeal. (People v. Mitchell, supra, 26 Cal.4th at pp. 185-186; People v. High, supra, 119 Cal.App.4th at p. 1200; Menius, supra, 25 Cal.App.4th at pp. 1294-1295.) We will therefore order the juvenile court to prepare an amended abstract of judgment setting forth that appellant’s maximum period of commitment to DJF is 13 years four months.

FACTS

On April 3, 2008, N.L. was with friends when appellant drove up to her, called her a bitch, grabbed her by the hair, and pulled her into his pickup truck. Appellant hit the victim several times with a closed fist while driving very fast. Appellant threatened to kill the victim and told her she would never see her daughter again. When an officer attempted to stop appellant for speeding, appellant said he would not go back to jail and evaded the officer. Appellant told the victim that he would crash the truck and kill both of them. The victim suffered injuries to her head and wrist.

A California Highway Patrol Officer (CHP) pursued appellant’s truck, which reached speeds of 100 miles per hour. Appellant ran through traffic lights and stop signs. When the truck came to a stop at an intersection, the CHP officer ordered appellant, at gunpoint, to turn off the ignition. Appellant sped away, sideswiping another car. When the officer placed his patrol vehicle behind the truck to block it, appellant rammed his truck into the patrol car.

DISCUSSION

Appellant’s appointed appellate counsel has filed an opening brief, which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on December 1, 2008, we invited appellant to submit additional briefing. Appellant replied with a letter asserting he was innocent of kidnapping and that the victim is willing to come forward and state she was not held against her will.

A guilty plea is, for most purposes, the legal equivalent of a jury’s guilty verdict. (People v. Valladoli (1996) 13 Cal.4th 590, 601.) A guilty plea serves as a stipulation that the People need not introduce proof to support the accusation. The plea ipso facto supplies both evidence and verdict and is deemed to constitute an admission of every element of the charged offense. (People v. Alfaro (1986) 42 Cal.3d 627, 636 [overruled on another ground in People v. Guerrero (1988) 44 Cal.3d 343]; People v. Chadd (1981) 28 Cal.3d 739, 748.) A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea and also constitutes an admission of every element of the offense pled. (People v. Warburton (1970) 7 Cal.App.3d 815, 820-821.) We therefore reject appellant’s contention that he was not guilty of kidnapping.

We noted appellant was committed to DJF in accordance with the plea bargained for and that the remaining allegations were dismissed. After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The case is remanded for the juvenile court to correct clerical errors, to amend its attachment to the commitment order as discussed above in footnotes two and four, and to forward the amended commitment order to the proper authorities. The judgment is affirmed.

Based on prior dispositions and the prosecutor’s notice of offenses it was seeking to aggregate in the amended petition, we have found the following mistakes in the attachment to the juvenile court’s commitment order. On page one of the attachment, two months are improperly imposed for a violation of probation that was not noticed in the amended petition. On page two of the attachment, a two-month term for one misdemeanor battery is left out and a second two-month term for another misdemeanor battery in 2007 is also left out. Two-month terms should be added for each misdemeanor battery. The term of six months for resisting arrest in 2007 should be reduced to four months. Finally, a term of eight months for a criminal street gang enhancement in 2007 should be removed. This allegation was dismissed on April 27, 2007. These changes will result in a net loss of eight months of commitment time to DJF as set forth in the attachment and will achieve the maximum period of commitment time to DJF of 13 years four months in accordance with the plea bargain and the juvenile court’s sentence.

The accounting in the amended abstract of judgment is clearly clerical error. Clerical errors that do not accurately reflect the pronouncements of the trial court, or in this case the juvenile court, can be corrected on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. High (2004) 119 Cal.App.4th 1192, 1200; People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295 (Menius).) The parties were notified pursuant to Government Code section 68081 of these errors and have not responded to our invitation to submit letter briefs.


Summaries of

In re F.R.

California Court of Appeals, Fifth District
Apr 24, 2009
No. F055590 (Cal. Ct. App. Apr. 24, 2009)
Case details for

In re F.R.

Case Details

Full title:In re F.R., a Person Coming Under The Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Fifth District

Date published: Apr 24, 2009

Citations

No. F055590 (Cal. Ct. App. Apr. 24, 2009)