Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB514091
ELIA, Acting P. J.Pursuant to a negotiated disposition, on July 20, 2005, defendant James Bath pleaded no contest to one count of transportation and distribution of marijuana (Health & Saf. Code, § 11360, subd. (a), count one), one count of resisting or deterring an officer (Pen. Code, § 69 count two), and one count of public intoxication (Pen. Code, § 647, subd. (f), count three). In exchange for his no contest pleas, defendant was promised his sentence would be 90 days in county jail.
On August 18, 2005, the court suspended imposition of sentence, placed defendant on three years probation and ordered defendant to serve a 90-day county jail term as one of the conditions of probation.
On the same day as he was sentenced, defendant wrote a letter to Judge Northway stating that he had been misled into entering into his plea bargain. Defendant stated that he had told trial counsel that he would not accept a disposition that included formal probation. On September 24, 2005, defendant sent a second letter to Judge Northway in which he had enclosed a typed statement dated September 5, 2005, which made allegations similar to those he had made in his earlier letter. It does not appear from the record before this court that defendant filed a notice of appeal after his sentencing hearing.
On November 16, 2006, defendant's probation officer filed a petition for modification of defendant's terms of probation. The petition recommended that defendant's probation be revoked. On November 26, 2007, after a formal probation revocation hearing, the court ordered that defendant's probation "remain revoked." The court imposed a three year prison term consisting of the midterm of three years for count one (transportation or sale of marijuana) with concurrent six month county jail terms for counts two and three (resisting or deterring an officer and public intoxication).
There is nothing in the record that indicates that defendant's probation was revoked at the time the petition was filed.
Defendant filed a notice of appeal on January 22, 2008.
We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. On May 20, 2008, we notified defendant of his right to submit written argument on his own behalf within 30 days. On June 13, 2008, appellate counsel received a letter from the defendant, which was not filed with the court until June 23, 2008.
On application of appellate counsel this court granted the request to file defendant's letter in this court.
In his letter, essentially, defendant makes the same allegations as he made in his letters to Judge Northway. That is, he had been misled into entering into his plea bargain by his public defender. Specifically, he argues that a grant of probation was not a part of the plea agreement. Defendant contends that if he had known he was going to be placed on probation he would have taken his case to trial. In addition, defendant makes allegations that the lawyer he hired to represent him at the probation violation hearing failed to present witnesses that "knew" that he had been told by his public defender that he "wouldn't get probation."
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (87 S.Ct. 1396), we have reviewed the entire record and have concluded that with the exception of a potentially unauthorized second restitution fund fine imposed after defendant's probation was revoked, there are no arguable issues on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.) In addition, we have described defendant's contentions. We will explain why we have rejected them. (Id. at p.113.)
Facts
There was no evidentiary hearing in this case. Further, because defendant waived referral to the probation department the facts of defendant's underlying case are unknown. However, in the petition to revoke defendant's probation the following summary appears: "On 4/27/05, the Mountain View Police Department responded to Pioneer Park on the report of a male subject, later identified as the defendant, attempting to furnish a female juvenile with marijuana. Upon arrival, officers located the defendant who was swaying from side to side and singing. The defendant then began cursing at officers, at which time he was placed under arrest. During a search of the defendant, officers located a baggie containing approximately 1.6 grams of marijuana, another baggie containing approximately 2.3 grams of marijuana, a brass smoking pipe, and a glass smoking pipe. [¶] While in route to the San Jose Main Jail, the defendant continued to curse and threaten the officers. The defendant was subsequently booked into the San Jose Main Jail, and during the booking process he had to be escorted away by Correctional Officers due to his aggressive behavior."
Procedural History
On April 29, 2005, the Santa Clara County District Attorney filed a complaint in which defendant was charged with one count of transportation and distribution of marijuana (Health & Saf. Code, § 11360. subd. (a), count one), one misdemeanor count of resisting or deterring an officer (Pen. Code, § 69, count two), and one count of public intoxication (Pen. Code, § 647, subd. (f), count three). The complaint alleged, within the meaning of Penal Code section 1203, subdivision (e)(4), that prior to the commission of the above charged offenses defendant had been convicted at least twice in this state of a felony, and/or in any other place of a public offense that if committed in this state would have been punishable as a felony.
Penal Code section 1203, subdivision (e)(4) states: "(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
The complaint alleged that defendant had been convicted in both Humboldt County and Sonoma County of obstructing/resisting an executive officer in the performance of his duties.
As noted, on July 20, 2005, defendant entered pleas of no contest to all three counts. Before defendant entered his pleas of no contest, the prosecutor advised defendant of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709], and In re Tahl (1969) 1 Cal.3d 122. Defendant freely and voluntarily waived those rights. Defendant was advised that the maximum potential sentence for the charges to which he would be entering pleas was four years. The prosecutor advised defendant of the immigration consequences of conviction and other consequences of his pleas of no contest including that he would have to register as a narcotics offender and that he would be placed on probation. Further, the prosecutor advised defendant that the court was not bound by the terms of the plea bargain, but if at the time of sentencing the court did not adhere to the terms of the plea bargain defendant would be allowed to withdraw his plea pursuant to Penal Code section 1192.5. Defendant indicated that he understood everything that the prosecutor explained to him. Counsel stipulated to a factual basis for the pleas. The prosecutor moved to strike the Penal Code section 1203, subdivision (e)(4) allegation. The court granted the motion. After taking defendant's pleas, the court found that defendant had knowingly, intelligently and voluntarily waived his rights and entered his pleas. Further, the court found a factual basis for the pleas.
As noted, the court suspended imposition of sentence and placed defendant on probation for three years. The court ordered that defendant serve a 90-day county jail term as one of the conditions of probation. In addition, among other things, the court ordered defendant not to possess or consume alcohol or illegal drugs. The court imposed a $200 restitution fund fine (Pen. Code, § 1202.4) and imposed and suspended a probation revocation fine in the same amount. (Pen. Code, § 1202.44.) The court awarded defendant 56 days of custody credits consisting of 38 actual days and 18 days of goodtime/work time credits pursuant to Penal Code section 4019.
The court ordered that defendant pay a 10 percent administrative fee on top of the $200 restitution fund fine. Accordingly, the minute order reflects that the court ordered a restitution fine of $220. Similarly, the minute order reflects that the court ordered and suspended a $220 probation revocation fine. We must assume that this administrative fee was imposed pursuant to Penal Code section 1202.4, subdivision (l).
When defendant's probation officer filed the probation modification petition on November 16, 2006, the probation officer alleged that defendant had been arrested in San Mateo County and was in custody pending "new felony violations of Section 664/422 of the Penal Code (Attempted Threat to Commit Crime Resulting in Death or Great Bodily Injury) and Section 422 of the Penal Code (Threat to Commit Crime Resulting in Death or Great Bodily Injury)." In addition, the probation officer alleged that on October 21, 2006, defendant admitted to police that he had consumed alcohol at a bar. Defendant's probation officer placed a probation hold on defendant. The court issued a bench warrant.
On April 26, 2007, defendant was arraigned on the probation violation. On June 13, 2007, criminal proceedings were suspended. The court appointed Dr. Bradley Novak to perform an examination of defendant pursuant to Penal Code section 1369, subdivision (a). On July 25, 2007, defendant was declared competent.
During defendant's formal probation revocation hearing the prosecution presented the following evidence. On October 21, 2006, San Bruno Police Officer James Haggarty was called to a condominium complex to respond to a complaint of vandalism and threats. The person involved in the incident was identified as defendant. Officer Haggarty contacted defendant the following day after he was told that defendant was heading east on San Bruno Avenue towards a shopping center. When Officer Haggarty asked defendant about the events that had transpired the previous day, defendant told him that he was a recovering alcoholic and that he had resumed drinking about 10 days earlier and had been drinking for 10 consecutive days. Defendant explained that he had engaged in a loud argument with the victim regarding a construction project. Defendant said that after the argument, he went to a local bar where he drank for approximately an hour. His girlfriend Bergetta Randall joined him at the bar. Defendant told Officer Haggarty that he drank until he was intoxicated. Defendant was unable to tell Officer Haggarty exactly what had happened because the level of his intoxication clouded his memory. The prosecutor introduced evidence that defendant had been convicted of a violation of Penal Code section 422 in San Mateo County, which resulted in him receiving a one year county jail sentence.
The court found that defendant had violated the terms of his probation based on the felony conviction from San Mateo County. In addition, the court found that appellant had consumed alcohol and been in a place where alcohol is the primary item for sale.
The defense presented several witnesses who offered statements in mitigation. David Gibson, defendant's Alcoholics Anonymous (AA) sponsor stated that defendant was fully committed to sobriety but that certain barriers specifically poverty and disability, stood in defendant's way. Gibson knew that defendant had completed an alcohol treatment program at Mills Hospital and that he had been prescribed medication for bipolar disorder. Gibson thought that defendant would be better able to achieve sobriety locally rather than in state prison. Steven Cosgrove, the pastor of Pacific Baptist Church, stated that defendant had been a member of his congregation for five years. At one time, Cosgrove had acted as defendant's AA sponsor and he believed that defendant was committed to the program and that it was beneficial for him to attend.
After hearing the evidence and argument of counsel, the trial court stated that despite defendant's earnest desire for rehabilitation, public safety had to be considered. The court noted that defendant had a lengthy criminal record and was unable to overcome his alcohol addiction and the behavior it caused. As a result, as noted, the trial court ordered defendant to serve the midterm of three years for count one and concurrent six-month jail terms for counts two and three. It appears that the court imposed a second restitution fund fine of $200.
On August 13, 2008, this court informed appellate counsel of this possible error. We pointed out that in 2005, at the time defendant was granted probation and as a condition of probation, the trial court ordered the defendant to pay a fine of $200 to the State Restitution Fund. (Pen. Code, § 1202.4, subds. (b), (e).) In 2007, when the trial court revoked defendant's probation and sentenced the defendant to three years in state prison the trial court also imposed a restitution fund fine of $200.
We gave counsel the opportunity to brief the issue. The time for counsel to respond to this court's letter has passed and we have not received any response from appellate counsel.
As a result, we will order the lower court to amend the abstract of judgment to reflect that the $200 restitution fund fine was imposed on August 18, 2005, when defendant was granted probation.
The amount of the restitution fine imposed in 2007 ($200) was identical to the amount previously imposed when probation was granted in 2005. We note that there is no indication in the record that defendant had paid anything on the previous fine, which would make the $200 amount imposed in 2007 correct; the oral pronouncement of the fine at the sentencing hearing was not inconsistent with its being a reiteration of the previous fine; and the abstract of judgment reflects only one $200 restitution fine under section 1202.4. However, it is not clear to this court whether the trial court improperly imposed a second fine, although we observe that we generally indulge in the presumption that the trial court was aware of, and properly applied, the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) On the other hand, the abstract of judgment did not specify that the court imposed the $200 restitution fine when probation was granted on August 18, 2005, rather than when defendant was sentenced to prison on November 26, 2007.
See People v. Chambers (1998) 65 Cal.App.4th 819, 823. (A trial court may not impose two separate restitution fines on a defendant for the same conviction. Consequently, imposing a second restitution fine when probation is revoked exceeds the court's jurisdiction.)
Accordingly, this court will order the abstract of judgment be modified to clarify that the restitution fine was imposed on August 18, 2005. If this modification reflects the trial court's intention at the sentencing hearing on November 26, 2007, the modification would be appropriate pursuant to the rule that the oral pronouncement of sentence controls where it is at variance with the minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471 [pronouncement of judgment is a judicial function, while entry into the minutes and abstract of judgment is a clerical function; thus, any inconsistency is presumed to be clerical error]; People v. Rowland (1988) 206 Cal.App.3d 119, 123 [appellate court has authority to correct such clerical errors].) If, on the other hand, the court intended to impose a second restitution fine, then modification of the abstract of judgment is warranted to repair the unauthorized sentence. In either factual scenario, the abstract of judgment should be amended.
Finally, we turn to defendant's contentions. Initially, we note that defendant's probation order is considered to be a final judgment for the "limited purpose of taking an appeal therefrom." (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796; Pen. Code, § 1237.) Accordingly, defendant cannot raise any claims that relate to the probation order because he missed the appeal deadline. More importantly, inasmuch as defendant raises ineffective assistance of trial counsel claims, these claims cannot be resolved on the present record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [an appellate court should not find ineffective assistance of counsel unless all facts relevant to that claim have been developed in the record].)
A written notice of appeal must be filed with the clerk of the superior court "within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal.Rules of Court, rule 8.308 [formerly, in 2005, rule 30.1.) Although normally the superior court must advise the defendant of his or her right to appeal, of the necessary steps and time for taking an appeal, and of an indigent defendant's right to have counsel appointed by the reviewing court pursuant to California Rules of Court, rules 4.305, 4.470, this procedure is not required following a guilty plea or no contest plea. (See People v. Serrano (1973) 33 Cal.App.3d 331, 337, [express language in the rule confines it to conviction after trial].)
Disposition
The judgment is modified to reflect that a $200 restitution fund fine was imposed on August 18, 2005. The superior court is directed to prepare an amended abstract of judgment reflecting this modification and transmit the amended abstract of judgment to the Department of Corrections. As so modified, the judgment is affirmed.
Since the Department of Corrections will be collecting the restitution fund fine, the county administrative fee (Pen. Code, § 1202.4, subd. (l)) is not applicable.
WE CONCUR: MIHARA, J., McADAMS, J.