Opinion
C086106
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DENNIS AMBLER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P17CRF0286)
Appointed counsel for defendant Michael Dennis Ambler has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the record, we will modify the judgment to dismiss certain remaining counts and enhancement allegations and affirm the judgment as modified.
FACTS AND PROCEEDINGS
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In January 2017, defendant unlawfully drove a truck without the consent of the owner and with the intent to either permanently or temporarily deprive the owner of possession of the vehicle. Defendant was previously convicted of unlawfully taking a vehicle. (Veh. Code, § 10851.)
In June 2017, defendant was charged with two counts of unlawfully taking a vehicle with a prior conviction for vehicle theft (Veh. Code, § 10851, subd. (e); Pen. Code, § 666.5--counts 1 & 2; statutory section references that follow are to the Penal Code unless otherwise stated) and misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364--count 3). It was further alleged defendant had a prior strike and prior felony convictions affecting his eligibility for probation. (§§ 667, subds. (b)-(i), 1203, subd. (e)(4).)
In September 2017, defendant pleaded no contest to count 1 and admitted his prior conviction for vehicle theft. The parties agreed to strike the strike and dismiss the remaining charges. Defendant agreed to waive his rights under People v. Arbuckle (1978) 22 Cal.3d 749 and be sentenced by any judge.
In October 2017, per the parties' agreement, the trial court sentenced defendant to state prison for one year for count 1 (one-third the midterm), to run consecutive to a four-year term in Placer County case No. 62-126403. The trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a corresponding $300 parole revocation fine, suspended unless parole is revoked (§ 1202.45). In addition, the trial court imposed a $40 court security fee (§ 1465.8) and a $30 conviction assessment fee (Gov. Code, § 70373). The trial court awarded defendant no custody credit because he was currently serving a state prison sentence. The trial court struck the strike but failed to dismiss the remaining counts.
Following a contested restitution hearing in November 2017, the trial court awarded $11,187.09 in victim restitution, plus $159 for mileage, or $11,346.09 total.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no such communication from defendant.
Our review of the record revealed the trial court struck the strike but failed to dismiss the remaining counts. We will order the remaining counts, one count of vehicle theft and misdemeanor possession of drug paraphernalia, dismissed. We find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified, dismissing the remaining counts and enhancement allegations. As modified, the judgment is affirmed.
HULL, Acting P. J. We concur: BUTZ, J. MAURO, J.