Opinion
C081321
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. DARREN DUANE COLN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MAN-CR-FE-2013-0001106)
Appointed counsel for defendant Darren Duane Coln 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.) We will modify the judgment to correct an error in the imposition of fees and fines. Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment as modified.
BACKGROUND
Law enforcement officers responded to a report of people being loud inside a car. The driver, Victoria Vigil, admitted there was marijuana in the car. Officers conducted a search of the car and a backpack near defendant in the car and found a .22-caliber semiautomatic pistol with a loaded magazine. Officers also found a wallet in the backpack which contained defendant's driver's license and credit cards, and a second magazine loaded with ammunition. Defendant denied that the backpack belonged to him and denied knowing who it belonged to. The parties later stipulated defendant had previously been convicted of a felony in 2012 and was precluded from owning or possessing firearms or ammunition.
Defendant was charged by amended information with possession of a firearm with a prior violent felony conviction (Pen. Code, § 29900, subd. (a)(1)--count 1), carrying a concealed firearm with a prior felony conviction (§ 25400, subd. (c)(1)--count 2), carrying a concealed stolen firearm (§ 25400, subd. (c)(2)--count 3), possession of ammunition (§ 30305, subd. (a)(1)--count 4), carrying a loaded firearm with a prior felony conviction (§ 25850, subd. (c)(1)--count 5), carrying a stolen loaded firearm (§ 25850, subd. (c)(2)--count 6), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)--count 7). The information alleged that, as to each count, defendant had suffered a prior strike conviction. (§§ 667, subd. (d) & 1170.12, subd. (b).) Counts 3 and 6 were subsequently dismissed for insufficient evidence.
Further undesignated statutory references are to the Penal Code.
Jury trial commenced on April 1, 2015. On April 7, the trial court granted defendant's request for a mistrial due to defendant's health issues. On July 23, 2015, defendant filed a motion to continue the rescheduled trial (§ 1050) arguing his previous attorney had been reassigned to a new unit in the public defender's office, he was not immediately told of the reassignment, and his attorney had not met with him or discussed the case with him in order to properly prepare for trial.
On July 24, 2015, the parties argued defendant's motion to continue trial. Defendant was present (out of custody) with his counsel. The court denied the motion, assigned the matter to a courtroom for trial, and ordered defendant to be present.
Jury trial commenced for the second time on July 29, 2015. On the second day of trial, defendant failed to return to court after a break in jury selection and made no attempt to contact the court or counsel. The court deemed defendant's absence voluntary, denied defense counsel's request to continue the trial, and ordered that the trial continue in defendant's absence.
Defendant was not present for the remainder of the trial. The court denied defense counsel's repeated requests for a continuance. As the jury deliberated on the final day of trial, the court issued a bench warrant for defendant's arrest.
On July 31, 2015, the jury returned verdicts of guilt on all five counts. Following the presentation of evidence, the jury found true the prior strike conviction allegations as to each count.
Defendant appeared in court on November 17, 2015, at which time the court ordered defendant to remain in custody and be present for sentencing on November 23, 2015.
On November 23, 2015, defendant made an oral motion pursuant to People v. Marsden (1970) 2 Cal.3d 118. Following a closed hearing, the court denied defendant's motion.
Next, defendant made a motion for new trial based on the trial court's failure to grant a continuance to determine the reasons for defendant's absence during trial. The prosecution opposed the motion, arguing defendant voluntarily absconded from trial and thus impliedly waived his right to be present. The court denied the new trial motion.
Finally, defendant made an oral motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior strike conviction. Following argument, the court denied the motion.
The court denied probation and sentenced defendant to an aggregate term of six years as follows: the upper term of three years on count 1, doubled for the prior strike, plus a concurrent four-year term on count 4, and three four-year terms on counts 2, 5, and 7, all of which were stayed pursuant to section 654. The court awarded defendant 202 days of presentence custody credit (101 actual days plus 101 days of conduct credit) and imposed the following fees and fines: a $300 restitution fine (§ 1202.4, subd. (b)(1)); a $300 parole revocation fine, stayed pending successful completion of parole (§ 1202.45); a $30 surcharge (§ 1203.1); a $40 court security fee (§ 1465.8); and a $30 conviction assessment (Gov. Code, § 70373). The January 25, 2016, minute order instead reflected a $200 court security fee and a $150 conviction assessment, as did the abstract of judgment.
Defendant filed a timely notice of appeal.
On September 28, 2016, pursuant to a letter from defendant's counsel which pointed out that the amounts in the documents did not match the court's oral pronouncement, the trial court issued an order modifying its January 25, 2016, minute order to reduce the $200 court security fee pursuant to section 1465.8 to $40, reduce the $150 conviction assessment pursuant to Government Code section 70373 to $30, and strike the surcharge pursuant to section 1203.1 to zero. A new minute order and an amended abstract of judgment reflecting the modifications were prepared and filed.
DISCUSSION
Counsel for defendant 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.
Our review of the record reveals an error in the trial court's imposition of the court security fee under section 1465.8, subdivision (a)(1) and the court facilities assessment under Government Code section 70373, subdivision (a)(1). These fees are mandatory as to each count of conviction, including stayed counts. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484; People v. Calles (2012) 209 Cal.App.4th 1200, 1226.) Defendant was convicted on five counts. The court orally imposed a $40 court security fee and a $30 court facilities assessment. This oral pronouncement omitted mandatory amounts for both fees as to the remaining four counts of conviction. We will modify the judgment to include the mandatory amounts and direct the trial court to prepare an amended abstract of judgment to reflect a $200 court security fee and $150 conviction assessment. We suggest the trial court also correct its internal records (minute order, etc.) to minimize any confusion.
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 modified to impose a $200 court security fee pursuant to section 1465.8 and a $150 conviction assessment pursuant to Government Code section 70373. As modified, the judgment is affirmed. The court is further directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, J. We concur: /s/_________
Butz, Acting P. J. /s/_________
Renner, J.