Opinion
A133147
07-10-2012
THE PEOPLE, Plaintiff and Respondent, v. ERIC JOSEPH DRAKE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. 115045)
I.
INTRODUCTION
Appellant Eric Joseph Drake was convicted of attempting to avoid the payment of restitution, within the meaning of Penal Code section 155.5, subdivision (b), while he was incarcerated at Pelican Bay State Prison (Pelican Bay). He contends on appeal that the conviction, which followed a court trial on stipulated facts, was not supported by substantial evidence and must be reversed. The Attorney General concedes that there was insufficient evidence to support the conviction and joins appellant's request that this court reverse the judgment.
All further statutory references are to the Penal Code, unless otherwise indicated.
We agree with the parties and reverse the judgment accordingly.
II.
FACTUAL AND PROCEDURAL BACKGROUNDS
An information was filed by the Del Norte County District Attorney on May 10, 2011, charging appellant with one count of attempted evasion of the payment of restitution, alleging that he attempted to sell, convey, assign, or conceal his property with the intent of impairing his financial ability to pay restitution, in violation of section 155.5, subdivision (b). The information also included two separate special sentencing enhancement allegations.
As part of a negotiated disposition, it was agreed that appellant would waive a jury trial, and if a court trial resulted in a conviction as to count one, the prosecution would agree to a sentence of eight months in state prison, and a dismissal of the special allegations in the information. Consistent with the parties' agreement, at his arraignment, appellant entered a plea of not guilty, waived a jury trial, and requested a court trial on the information. The trial court requested the parties to file trial briefs forthwith.
From the subsequently filed briefs it became apparent that the charge in the information arose from events which occurred while appellant was incarcerated in Pelican Bay as a result of two convictions for second degree robbery with a firearm enhancement (§§ 211, 12022.53, subd. (b), respectively). As part of the sentence he received for these convictions, appellant had been ordered to pay restitution in the amount of $2,030.
In October 2010, appellant attempted to send a letter to a correspondent outside of Pelican Bay requesting that they send money to appellant by way of a deposit into the prison account of another inmate. This would allow appellant, who was on lockdown, to purchase items at the prison canteen through the other inmate, who was not on lockdown. Also, following this procedure would allow appellant to avoid the confiscation of half of the amount deposited to satisfy the outstanding restitution order. The letter was intercepted by a correctional officer in the outgoing mail, and was then confiscated by prison officials before it left Pelican Bay. The parties entered into a formal stipulation concerning these facts for purposes of the court trial.
The court trial took place on August 18, 2011. Appellant was found guilty of violating section 155.5, subdivision (b). Presentence reports were waived, as well as a referral to the probation department. The court then sentenced appellant to eight months in state prison, consecutive to the sentence he was then serving in Pelican Bay, with additional fines and penalties imposed. This appeal followed.
III.
DISCUSSION
Appellant contends that the stipulated facts to not support an attempt to violate section 155.5, subdivision (b). He argues that there was no evidence that he had any legal right to the money he solicited by letter from those outside of Pelican Bay. Thus, there was no "property" of his that he was attempting to conceal in order to avoid the restitution order. At most, he was soliciting a gift of money to be sent to him through another inmate.
Section 155.5, subdivision (b), provides: "(b) Any defendant who is ordered to pay any fine or restitution in connection with the commission of a felony and who, after the plea or judgment and prior to sentencing for the same felony offense, or during the period that a restitution order remains unsatisfied and enforceable, sells, conveys, assigns, or conceals his or her property with the intent to lessen or impair his or her financial ability to pay in full any fine or restitution which he or she may lawfully be ordered to pay or to avoid forfeiture of assets derived from either criminal profiteering pursuant to Chapter 9 (commencing with Section 186) of this title or trafficking in controlled substances pursuant to Chapter 8 (commencing with Section 11470) of Division 10 of the Health and Safety Code, is guilty of a felony." (Italics added.)
The Attorney General agrees with appellant's argument that there is no evidence the money he sought was "his own property." Therefore, both parties request that the judgment be reversed. We agree, and we reverse the judgment of conviction entered by the trial court.
IV.
DISPOSITION
The judgment is reversed.
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RUVOLO, P. J.
We concur:
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RIVERA, J.
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Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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