Opinion
C081352
01-31-2017
THE PEOPLE, Plaintiff and Respondent, v. GLENN LAWRANCE AYMAR, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 62-107997, 62-132515)
Appointed counsel for defendant Glenn Lawrance Aymar asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
We provide the following brief description of the facts and procedural history of the case pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 124.
The following factual summary is derived from the preliminary hearing transcripts, which the parties stipulated provided the factual basis for defendant's plea: Between January 1, 2014, and July 31, 2014, while defendant was registering as a transient pursuant to his duty to register as a sex offender, defendant began residing at 1508 Tulip Circle in the City of Auburn, County of Placer. He knowingly and willfully failed to register that address with law enforcement within five working days. On or about January 4, 1990, defendant suffered a prior strike conviction for violating Penal Code section 288, subdivision (a).
Undesignated statutory references are to the Penal Code.
On September 12, 2014, defendant was charged by information in case No. 62-132515 with failure to update registration every 30 days (§ 290.011, subd. (b)—count one), failure to file a change of address (§ 290.013, subd. (a)—count two), failure to update registration annually (§ 290.010, subd. (a)—count three), and failure to update registration annually (§ 290.012, subd. (a)—count four). The information alleged defendant suffered two prior sex offender registration convictions (§ 290.018, subd. (b)) and two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Counts three and four and the section 290.018, subdivision (b) allegation were subsequently dismissed and the information was amended accordingly.
As part of the trial court's rulings on pretrial motions in limine, the court granted the prosecution's motion to admit into evidence a recorded statement of defendant made on the day of his arrest, but ordered the prosecution to redact all references to probation and parole from the statement.
The case proceeded to trial. On March 13, 2015, the jury was given transcripts of defendant's recorded statement. Shortly thereafter, the trial court granted defendant's motion for a mistrial due to the prosecution's inadvertent failure to redact portions of the statement as previously ordered.
The prosecution thereafter moved to amend the information to add two new counts alleging defendant's failure to register at a second address. The court denied the motion. In June 2015, the prosecution filed a new complaint (case No. 62-138600) alleging the two new charges. Defendant was held to answer on the single charge of failure to register within five working days. (§ 290.011, subd. (b).)
On July 30, 2015, the trial court granted the prosecution's motion to consolidate case Nos. 62-138600 and 62-132515, with the latter the lead case number. The second amended consolidated information alleged two counts of failure to register address within five working days of changing residences (§ 290.011, subd. (b)—counts one and three) and two counts of failure to register as a sex offender (§ 290, subd. (b)—counts two and four). The amended information alleged defendant suffered two prior strike convictions. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).)
Defendant filed a motion pursuant to section 995 to strike the amended information for insufficient evidence. However, prior to obtaining a ruling on his motion, defendant entered a negotiated plea of no contest to count three and admitted the two prior strike allegations, as well as a probation violation in a separate matter (case No. 62-107997) in exchange for dismissal of all remaining charges and allegations against him pursuant to a Harvey waiver, and the right to file a motion pursuant to section 1385 to dismiss the prior strike allegations. Defendant also waived his right to appeal with the exception of issues related to errors by the court during sentencing. The parties stipulated to a factual basis for the plea.
People v. Harvey (1979) 25 Cal.3d 754.
Prior to sentencing, defendant filed a request pursuant to section 1385 to strike the prior strike convictions. After carefully considering the oral and written arguments of the parties, the court granted the motion in part, dismissing one of the two prior strike convictions.
The court denied probation and, finding there were several aggravating factors and no mitigating factors, sentenced defendant to the upper term of three years, doubled for the prior strike conviction, plus a consecutive eight-month term (one-third the middle term) for the probation violation in case No. 62-107997, for an aggregate sentence of six years eight months in state prison. The court awarded defendant 1,073 days of presentence custody credit in case No. 62-132515 (537 actual days plus 536 days of conduct credit) and 113 days in case No. 62-107997 (57 actual days plus 56 days of conduct credit), for an aggregate of 1,186 days of presentence custody credit. The court imposed a $1,000 restitution fine (§ 1202.4, subd. (b)), a $1,000 parole revocation fine, stayed pending successful completion of parole (§ 1202.45), a $459 booking fee (Gov. Code, § 29550.2), a $118 incarceration fee (§ 1203.1c), a $40 court operations assessment (§ 1465.8), a $30 conviction assessment (Gov. Code, § 70373), and a $359 presentence investigation report fee (§ 1203.1b). The court also ordered defendant to pay all fines and fees previously ordered by the court in case No. 62-107997, including a $240 state restitution fine "pursuant to Penal Code, Section 1202.45." On defendant's subsequent motion, the court struck the $118 incarceration fee.
We assume the trial court misspoke, or there was an error in transcription, as the proper section is 1202.44, as correctly reflected in the abstract of judgment. --------
Defendant filed a timely notice of appeal. He did not obtain 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. To date, defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: ROBIE, Acting P. J. MURRAY, J.