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People v. Hopson

California Court of Appeals, Third District, Shasta
Mar 4, 2008
No. C055252 (Cal. Ct. App. Mar. 4, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JAY OLIVER HOPSON, Defendant and Appellant. C055252 California Court of Appeal, Third District, Shasta March 4, 2008

NOT TO BE PUBLISHED

Super. Ct. Nos. 05F8176, 05F7556

DAVIS, Acting P.J.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. We shall affirm the judgment.

On October 8, 2005, defendant Jay Hopson saw his former girlfriend with another man. Defendant confronted the man with a metal pipe, broke his car windows, and struck him several times with the pipe. The victim fled in his truck but lost control and ended up in a ditch. He began to run but Hopson caught him, hit him again with the pipe, and choked him.

The facts concerning the underlying offenses are taken from the probation reports. In entering his pleas, defendant stipulated that the factual basis for the pleas could be taken from the police and sheriff’s reports, which are summarized in the probation reports.

On October 9, 2005, defendant was seen driving through a parking lot. He was arrested in connection with the event that had occurred the previous day. A search of his car revealed a package containing 3.1 grams of methamphetamine.

Defendant was charged in case No. 05F07556 with assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and felony vandalism (§ 594, subd. (b)(1)). The assault charge was reduced to a misdemeanor on the People’s motion, and defendant pleaded no contest to both offenses in exchange for a 16-month sentencing lid.

Hereafter, undesignated section references are to the Penal Code.

Defendant was charged in case No. 05F08176 with possessing and transporting methamphetamine. (Health & Saf. Code, §§ 11377, subd. (a), 11379, subd. (a).) He pleaded no contest to transporting methamphetamine in exchange for dismissal of the remaining count and either a sentence not to exceed any prison sentence imposed in case No. 05F07556, or, in the event he was not sentenced to prison in case No. 05F07556, Proposition 36 probation.

On November 17, 2005, defendant was sentenced in both cases. In case No. 05F07556 (the vandalism case), the trial court suspended imposition of sentence and placed defendant on three years’ formal probation on conditions, among others, that he serve 180 days in county jail with 60 days credit (40 actual days and 20 days good conduct); obey all laws; have no contact with the victim; not use or possess any controlled substances; participate in counseling; surrender his driver’s license and have his driving privileges suspended for one year (Veh. Code, § 13202.6); and provide samples (§ 296). The court also ordered him to pay a $200 restitution fine plus a 10 percent administrative fee (§ 1202.4), a $200 probation revocation fine effective only upon revocation of probation (§ 1202.44), victim restitution plus a 10 percent administrative fee as directed by the probation officer (with the right to a hearing if he disagreed with the amount) (§ 1202.4, subd. (f)), a $20 court security fee (§ 1465.8), a $128 booking fee, and the cost of probation services not to exceed $25 per month.

The clerk’s minutes erroneously reflect that the court imposed a $600 restitution fine and a $600 parole revocation fine. The general rule is that a conflict between a reporter’s transcript and a clerk’s transcript is presumed to be clerical error and is resolved in favor of the reporter’s transcript, unless circumstances dictate otherwise. (In re Merrick V. (2004) 122 Cal.App.4th 235, 249.) Thus, we go by the reporter’s transcript.

In case No. 05F08176 (the drug case), the trial court suspended imposition of sentence and placed defendant on three years’ probation under Proposition 36 on conditions, among others, that he “serve a jail sentence commuted to time served”; obey all laws; participate in and successfully complete a drug treatment program as directed by probation; not use or possess any controlled substances without a prescription; and participate in and complete other counseling as directed by probation. The court also ordered him to pay a $200 restitution fine plus a 10 percent administrative fee, a $200 probation revocation fine, a $20 court security fee, a $157.50 crime lab fee (Health & Saf. Code, § 11372.5; Pen. Code, § 1464; Gov. Code, § 76000), and a $128 booking fee; and register as a controlled substance offender (Health & Saf. Code, § 11590).

On April 14, 2006, defendant admitted violating the conditions of his probation in the drug case by failing to attend his groups and outside meetings as directed by the treatment provider and failing to report to the probation department as directed. Defendant’s probation was revoked and reinstated.

On April 28, 2006, defendant again admitted violating the conditions of his probation in the drug case by failing to attend an intake appointment as directed by the treatment provider and failing to report to the probation department. Defendant’s probation was again revoked and reinstated.

On June 22, 2006, defendant admitted violating the conditions of his probation in the drug case a third time by being dismissed from his anger management program after failing to attend. His probation was revoked and reinstated.

On January 4, 2007, defendant admitted violating the conditions of probation in both cases in exchange for a referral to probation. He admitted violating the conditions of his probation in the drug case by failing to comply with his treatment program, failing to report to his probation officer, and testing positive for methamphetamine; and he admitted violating the conditions of his probation in the vandalism case by testing positive for methamphetamine.

At the section 1204 hearing, defendant testified that his drug problem dated back 10 years or so; that the drug treatment he received under Proposition 36 was outpatient treatment; and that if he was reinstated on probation, he would enter and complete a residential treatment program. Citing defendant’s repeated probation violations and his presumptive ineligibility for probation, the trial court terminated defendant’s probation and sentenced him to three years eight months in state prison, consisting of three years (the middle term) in the drug case, and a consecutive eight months (one-third the middle term) in the vandalism case. Defendant was given custody credit for 189 days (127 actual days and 62 good conduct days). The court also imposed a $200 parole revocation fine (§ 1202.45) in each case, and ordered that “[a]ll the other fees and orders that were made that don’t relate to probation remain in effect.

Section 1204 states in part: “The circumstances [in mitigation or aggravation] shall be presented by the testimony of witnesses examined in open court . . . . No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section. This section shall not be construed to prohibit the filing of a written report by a defendant or defendant’s counsel on behalf of a defendant if such a report presents a study of his background and personality and suggests a rehabilitation program. If such a report is submitted, the prosecution or probation officer shall be permitted to reply to or to evaluate the program.”

Defendant was sentenced to time served for the misdemeanor violation in the vandalism case.

The trial court miscalculated defendant’s custody credits. Upon motion by defendant’s appellate counsel, the trial court corrected defendant’s custody credit to 350 days (234 actual days and 116 good conduct days). An amended abstract reflecting this correction was filed September 17, 2007.

The reporter’s transcript erroneously reflects that the trial court previously imposed a $600 restitution fine in the vandalism case, and on that basis, the trial court purported to impose a $600 parole revocation fine in that case. We need not correct the error, however, because the clerk’s minutes of the sentencing hearing, as well as the abstract of judgment, correctly reflect that a $200 restitution fine and a $200 parole revocation fine were imposed in each case.

Defendant appeals. He did not obtain a certificate of probable cause.

We appointed counsel to represent defendant on appeal. Counsel 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. More than 30 days have elapsed, and we have received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

We concur: RAYE, J., BUTZ, J.


Summaries of

People v. Hopson

California Court of Appeals, Third District, Shasta
Mar 4, 2008
No. C055252 (Cal. Ct. App. Mar. 4, 2008)
Case details for

People v. Hopson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAY OLIVER HOPSON, Defendant and…

Court:California Court of Appeals, Third District, Shasta

Date published: Mar 4, 2008

Citations

No. C055252 (Cal. Ct. App. Mar. 4, 2008)