Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Received for posting 11/3/08
Monterey County Super. Ct. No. SS070792
Bamattre-Manoukian, ACTING P.J.
As defendant Jose Alfredo Cuellar was convicted by plea, the following summary of his offenses is taken from the probation report. On January 28, 2007, about 5:00 a.m., California Highway Patrol officers responded to a solo vehicle collision. The officers made contact with defendant, who had red and watery eyes and emitted a strong odor of alcohol. A breath sample obtained from defendant indicated a blood alcohol content of .242 percent. Defendant was not the registered owner of the vehicle. Later that morning, the vehicle was reported as stolen by the registered owner.
Defendant was charged by information filed February 14, 2007, with one count of vehicle theft (Pen. Code, § 10851, subd. (a); count 1), three counts of driving under the influence (DUI) with three specified prior convictions (Veh. Code, §§ 23152, subds. (a) & (b), 23550, subd. (a); counts 2-4), and one count of driving with a suspended or revoked license due to a prior conviction for DUI (Veh. Code, § 14601.2, subd (a); count 5, a misdemeanor). The information further alleged as to counts 1 through 4 that defendant had served one prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
On March 8, 2007, defendant entered negotiated guilty pleas to count 1, vehicle theft, and count 2, DUI with three prior convictions, and admitted having served a prior prison term, on the condition that he receive no more than three years in prison.
A Marsden hearing was held on July 5, 2007. Upon further discussion with the trial court, defendant withdrew his Marsden motion and allowed his current counsel to advise the court that he wished to withdraw his plea. The court then appointed counsel from the alternate defendant’s office to assist defendant with a potential motion to withdraw the plea.
People v. Marsden (1970) 2 Cal.3d 118.
At a hearing on July 19, 2007, defendant’s second attorney indicated that he believed defendant had no reason to withdraw the plea and should proceed with sentencing. The trial court relieved defendant’s first attorney, who was from the public defender’s office, and continued the matter for sentencing.
The sentencing hearing was held on October 30, 2007. The prosecutor argued that defendant should receive three years in prison and should not be placed on probation. Defense counsel asked that defendant be sent to an alcohol treatment program rather than to prison. The trial court recognized that the plea agreement had been for a maximum of three years in prison, but indicated that if defendant wanted felony probation, the court would be willing to sentence him to four years in prison and suspend execution of sentence, with successful completion of an alcohol program being a condition of probation. Defendant agreed to the offer. He also agreed, at the prosecutor’s request, to waive custody credits over 365 days if he violated probation.
The trial court then sentenced defendant to the upper term of three years in prison for the vehicle theft, a concurrent term of three years for the DUI, and one consecutive year for the prison prior, for a total term of four years. The court suspended execution of sentence and granted probation to defendant with various terms and conditions, including obeying all laws and abstaining from the use of alcoholic beverages. Defendant was ordered to pay various fines, fees, and costs, including a restitution fine of $200 and an additional probation revocation restitution fine. He was also ordered to serve 365 days in county jail, with credit for time served of 365 days. All remaining counts were dismissed pursuant to section 1385.
On February 25, 2008, the prosecutor filed a declaration alleging that defendant violated the terms and conditions of probation by violating section 148, subdivision (a)(1), and failing to obey all laws. The declaration made reference to a police report and to case No. MS263615A. The next day, defendant was arraigned on the violation of probation and his probation was revoked.
The formal probation violation hearing was held on March 21, 2008. Salinas Police Officer Rodolfo Roman testified that on February 22, 2008, he was working with California Highway Patrol Officer Rocha as part of a joint gang task force. About 10:00 p.m., the officers received a call through dispatch regarding a disturbance at King’s Den, a bar. When they were less than one block away from the bar, dispatch informed the officers that “the subject was causing a disturbance and attempting to fight subjects at the bar,” and that “[h]e had left the bar . . . .” The subject was described as “a male Hispanic wearing a checkered shirt with black and white checkers.” Officer Rocha saw a male, who matched the description given by dispatch, walking through a parking lot. Officer Roman turned his vehicle towards the male and, as the vehicle’s headlights “lit the subject,” he observed that the male’s clothing matched the description from dispatch. The male told officers “that the subject ran in that direction.” Officer Roman identified defendant at the probation violation hearing as the male who made this statement.
As the officers exited their vehicle, they called to defendant, who was about 20 feet away. As defendant walked towards them, he started yelling, his demeanor changed, and he “appeared aggressive.” Officer Roman testified that defendant “started screaming ‘just shoot me.’ ” The officers “told him to stop multiple times, and he did not comply.” The officers drew their Tasers and “told him to put his hands up.” Officer Roman testified that “a little bit more than two or three seconds” had elapsed between the time the officers told defendant to “stop” and when he actually stopped, and that defendant had moved three or four feet. At that point, defendant was approximately ten feet away from the officers. Defendant did not comply with the initial order to put his hands up and “continued yelling” for officers “to shoot him.” After he was ordered a second time to put his hands up, he complied and was handcuffed by Officer Roman.
Officer Roman testified that defendant stated he “was drinking a beer with his brother” at a bar, “his brother had gotten into a fight, and they had left.” According to Officer Roman, defendant “wasn’t making clear statements” and “had slurred speech,” but he “was able to take care of himself that evening.” Defendant stated twice that his date of birth was “13-16-64” before providing “the correct date.”
The court took judicial notice of the terms of probation entered on October 30, 2007. After hearing arguments from counsel, the court found defendant in violation of probation. The court determined that defendant had violated section 148, subdivision (a)(1), in view of the totality of the circumstances, including advancing for three or four feet, ignoring the first order to put his hands up, and telling officers to shoot him. The court also found that defendant was in violation of the terms and conditions of probation by consuming alcohol. Although “[t]hat was not alleged in the petition,” the court reasoned “there was reference to that in the police report,” which had been identified in the prosecutor’s declaration alleging a violation of probation. Contrary to the prosecutor’s argument, the court determined that defendant was not in violation of section 647, subdivision (f), because “there was no evidence that he was unable to safely take care of himself.”
On April 22, 2008, the court imposed the previously suspended sentence of four years in prison and granted defendant 449 days of custody credits. The court ordered defendant to pay victim restitution in the amount of $14,458.90 and to pay the outstanding balance of $200 for the restitution fine. Upon the prosecutor’s motion and in the interest of justice, the court dismissed case No. MS263615A.
Defendant filed a notice of appeal on April 23, 2008.
We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and facts but raises no issue. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
We do find a clerical error in the abstract of judgment that must be corrected. The record reflects that on October 30, 2007, the court ordered defendant to pay a restitution fine of $200 pursuant to section 1202.4, subdivision (b), and the court also imposed a probation revocation restitution fine pursuant to section 1202.44. On April 22, 2008, the court ordered defendant to pay the outstanding balance of $200 for the restitution fine, but did not refer to the probation revocation restitution fine that had been imposed previously. The abstract of judgment includes the restitution fine of $200, but not the probation revocation restitution fine. A probation revocation restitution fine must be in the same amount as the restitution fine, and it is “effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record.” (§ 1202.44.) In this case, the court imposed a probation revocation restitution fine on October 30, 2007, and it became effective upon the revocation of defendant’s probation. Accordingly, we will order the abstract of judgment modified to include the probation revocation restitution fine in the amount of $200.
The abstract of judgment is ordered modified to state that the amount of the probation revocation restitution fine (§ 1202.44) is $200. As so modified, the judgment is affirmed. The clerk of the superior court is ordered to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J., MCADAMS, J.