Opinion
C098406
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JAMIE MICHELLE BARBEIRO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. Nos. 23CF00087, 21CF00229, 22CF02253, & 23CM0090)
Krause, J.
Appointed counsel for defendant Jamie Michelle Barbeiro has asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Having conducted this review, we will amend the judgment to dismiss the counts from Butte County case No. 21CF00229 in accordance with defendant's February 16, 2022, plea agreement. Finding no other errors that would result in a disposition more favorable to defendant, we will affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On February 16, 2022, defendant pleaded no contest to identity theft (Pen. Code, § 530.5, subd. (a)) in Butte County case No. 21CF00229 (the identify theft case) and in exchange, the remaining counts were to be dismissed with Harvey waivers. The stipulated factual basis for her plea was the police reports. Sentencing was set for April 13, 2022. Defendant failed to appear for sentencing, resulting in the filing of Butte County case No. 22CF02253 (the failure to appear case).
Undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
Thereafter, on January 18, 2023, defendant resolved numerous cases by pleading no contest: to failure to appear (§ 1320, subd. (b)) in the failure to appear case, to vehicle theft (Veh. Code, § 10851, subd. (a)) in Butte County case No. 23CF00087 (the vehicle theft case); and to providing false information (§ 148.9, subd. (a)) in Butte County case No. 23CM0090 (the false information case). The stipulated factual basis for the plea would be taken from the probation report. In exchange, the court dismissed the remaining counts and struck the remaining allegations with Harvey waivers.
On February 22, 2023, the trial court sentenced defendant in the identity theft case, the failure to appear case, the vehicle theft case, and the false information case. The court imposed an aggregate county prison term of three years four months comprised of the middle term of two years for the identity theft case, plus a consecutive eight months for the failure to appear case (one-third the midterm), a consecutive eight months for the vehicle theft case (one-third the midterm), and a concurrent term of six months for the false information case. In light of defendant's prior performance on supervision, there would not be a term of mandatory supervision. The court awarded a total of 133 days' custody credit in the identity theft case. No credits accrued in the other cases.
Finally, the trial court imposed statutory minimum restitution fines in all cases, awarded $929.28 in victim restitution in the identity theft case, and reserved jurisdiction to impose victim restitution in the vehicle theft case. Defendant filed an appeal in the vehicle theft case on April 24, 2023, and did not request a certificate of probable cause.
Given appellate counsel's mistaken belief that the identity theft case, the failure to appear case, and the false information case had been consolidated with the vehicle theft case for purposes of sentencing, we will on our own motion liberally construe the notice of appeal to include: Butte County case No. 21CF00229, Butte County case No. 22CF02253, and Butte County case No. 23CM0090. Because this court has already granted defendant's motion to augment the appeal to include these records, no additional augmentation of the record is required.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history 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 at p. 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Having undertaken an examination of the entire record pursuant to Wende, we note that while defendant's plea agreement in the identity theft case provided for the dismissal of the remaining counts against her, the trial court failed to formally act on the People's motion to dismiss those counts. We will amend the judgment to dismiss all three remaining counts in the identity theft case. Because the February 16, 2022, minute order from that hearing already reflects the dismissal of these counts, no amendment of that document is necessary. Finding no other errors that would result in a disposition more favorable to defendant, we will affirm the judgment as modified.
DISPOSITION
We amend the judgment in Butte County case No. 21CF00229 (the identity theft case) to reflect the dismissal with a Harvey waiver of the remaining three counts: forgery related to identity theft (§ 470, subd. (d); count 02); grand theft by access card (§ 484g; count 03); identity theft with a prior (§ 530.5, subd. (c)(2); count 04) in accordance with defendant's plea agreement on February 26, 2022. The judgment is affirmed as modified.
We concur: Earl, P. J. Wiseman, J. [*]
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.