Opinion
A154049
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN PATRICK FLANAGAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-17-91329)
In a negotiated disposition, Kevin Patrick Flanagan pled no contest to a charge of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and admitted he personally inflicted great bodily injury (§ 12022.7, subd. (a)). He received an agreed sentence of seven years in state prison.
Undesignated statutory references are to the Penal Code.
Assigned counsel has submitted a Wende brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Flanagan was advised of his right to personally file a supplemental brief raising any points he wishes to call to the court's attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.) We agree there are no arguable issues and affirm.
People v. Wende (1979) 25 Cal.3d 436.
FACTUAL AND PROCEDURAL HISTORY
The facts are taken from the probation report.
Flanagan told a probation officer he and codefendant Cassady Vaughn had been drinking heavily at the time of the incident, and he fell asleep in a grassy outdoor area in Willits. He awoke to Vaughn screaming that someone had sexually assaulted her. Flanagan said he "vaguely remembered" kicking the victim. The victim, who happened to be napping in the area, was knocked unconscious, did not remember what happened, and did not know the man and woman who were observed assaulting him. He awoke in the intensive care unit at Santa Rosa Memorial Hospital with a skull fracture, a broken nose, and two missing teeth. He needed five stitches in his bottom lip and spent 12 days in the hospital.
Flanagan and Vaughn were charged with attempted murder (§§ 187, 664). It was alleged Flanagan personally inflicted great bodily injury (§ 12022.7, subd. (a)). An amended complaint added, as count 2, a charge of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). Pursuant to plea agreement, Flanagan pled no contest to count 2 and admitted the great bodily injury allegation, with an understanding he would receive a prison sentence of seven years.
On March 1, 2018, the court imposed the agreed upon seven-year sentence (upper-term of four years plus three years for the great bodily injury enhancement). The court awarded Flanagan 192 actual days plus 28 good time/work days, for a total presentence credit of 220 days. A restitution fine (§ 1202.4, subd. (b)) of $2,100 was imposed (the mandatory minimum amount of $300, multiplied by the number of years imposed). The court expressed the understanding that the amount of the restitution fine was "mandatory." Flanagan filed a timely notice of appeal.
Flanagan's appointed appellate counsel represents that he subsequently filed a request to reduce the restitution fine to the mandatory minimum of $300. (See People v. Fares (1993) 16 Cal.App.4th 954, 959 [motion to correct sentence should be made in the trial court].) We are advised that the court, at a hearing on the motion, acknowledged it had discretion to impose a restitution fine as low as $300, but it elected to leave the fine at the previously set amount of $2,100. Although not included in the appellate record, we accept counsel's representations as an officer of the court. (See Rules Prof. Conduct, rule 5-200(B) [attorney "shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law"].)
DISCUSSION
Flanagan did not seek or obtain a certificate of probable cause (§ 1237.5; Cal. Rules of Court, rule 8.304(b)), and so no cognizable issues are before us relating to his guilt or to his plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1099; People v. Panizzon (1996) 13 Cal.4th 68, 74.) His notice of appeal challenges only "the sentence or other matters occurring after the plea that do not affect the validity of the plea."
The prison sentence imposed was consistent with the terms of the plea bargain. The only apparent issue in the initial sentence imposed was the court's misunderstanding of its discretion in setting the restitution fine amount in excess of the $300 statutory minimum. On conviction for a criminal offense, the court "shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (§ 1202.4, subd. (b), italics added.) The amount of the fine "shall be set at the discretion of the court and commensurate with the seriousness of the offense," with a minimum felony fine of $300 and maximum of $10,000. (Id., subd. (b)(1).) "In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (Id., subd. (b)(2), italics added.)
The record shows the trial court initially misunderstood the scope of its discretion in setting the restitution fine. In such circumstances, we would either remand to permit the court to impose sentence with full awareness of its discretion (People v. Fuhrman (1997) 16 Cal.4th 930, 944.), or simply reduce the fine to the statutory minimum. (People v. Walker (1991) 54 Cal.3d 1013, 1029, overruled in other respects by People v. Villalobos (2012) 54 Cal.4th 177, 183.) Here, however, counsel properly sought to bring the error to the attention of the trial court in the first instance. (People v. Fares, supra, 16 Cal.App.4th at p. 959 ["when 'appropriately apprised of its inadvertence, the court [becomes] licensed to impose a proper finding and sentence' "].) The court then, with full awareness if its discretion, affirmed its decision to impose a fine consistent with the formula permitted by section 1202.4, subdivision (b)(2). All fines, fees and penalties were therefore properly imposed.
Flanagan was advised at the time of his plea he would be required to pay restitution, statutory fees, and assessments in amounts "to be determined." He did not contend at sentencing that the court failed to advise him of this consequence of his plea, or that the restitution fine was a violation of the terms of his plea agreement. (See People v. Crandell (2007) 40 Cal.4th 1301, 1309 [where record demonstrates parties intended to leave restitution fine amount to the court's discretion, defendant is not entitled to relief].) --------
DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.