Opinion
C076673
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. MAX YASUNARI KURTZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P12CRF0422)
Appointed counsel for defendant Max Yasunari Kurtz has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We find a sentencing error, which we will correct on appeal, and affirm the judgment as modified.
I. BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Douglas Bennett lived in a six-bedroom house on five acres. Many people were in and out of Bennett's house. For about two weeks, defendant's "ex," Megan Patterson, stayed at Bennett's house with two children. The day she left, Patterson left behind two car seats, some clothing, toiletries, and some photographs.
On April 24, 2012, defendant and a woman went to Bennett's house to retrieve Patterson's belongings. Defendant was upset. He and Bennett argued; Bennett felt like defendant blamed him for Patterson's children being taken. After arguing for several minutes, Bennett asked the women who were living in his home to gather Patterson's things. He invited defendant inside and asked one of the women, Heather Stevens, to show him around. Defendant went inside to look around and Bennett walked away to a remote area of his property, where he stayed for about an hour.
Bennett came back to the house when he heard his Harley Davidson start up. He saw defendant driving away with his motorcycle; the woman who came with him followed in her car. The motorcycle was reported stolen within minutes.
On May 14, 2012, sometime around midnight, Logan Helgeson and Tanja Martin were high on methamphetamine when Gary Ward (also referred to throughout the record by his alias, "JR") and Ayesha Bowen, who were also high, arrived at the mobile home in which Helgeson and Martin were living. Ward told Helgeson he needed to get a pink slip from Bennett; Helgeson and Martin agreed to join him and Bowen. Helgeson brought a knife.
Bennett was in bed with one of the women living in his house, Angel Asheby, when they heard a loud noise and voices yelling for Bennett. Bennett hid under the bed and told Asheby to tell them he was not home. Bennett and Asheby each grabbed a gun.
Asheby saw Martin run around the house toward the laundry room door. Asheby followed and confronted Martin in the hallway, pointing the gun at her and telling her to leave. Asheby told Martin that Bennett was not home but Martin refused to leave. Martin then let the others in the house through the front door. They demanded to see Bennett.
Martin found Bennett under the bed. With everyone there, and Helgeson holding his knife, Ward told Bennett that defendant "needed a pink slip." Ward said he wanted to avoid any "bloodshed" and told Bennett to give him the slip. He told Bennett, "[t]hese people don't play," and "[y]ou know you had this coming." Bennett continued refusing to turn over the pink slip, saying he did not know where it was. Helgeson became impatient and pointed a gun at Bennett. Ward took the gun away from Helgeson and, "to get the situation calmed down," Ward, Asheby, and Bennett smoked marijuana together. Then, as Ward left, he apologized to Bennett and promised to return the following night.
Ward, Bowen, Helgeson, and Martin returned to the mobile home. About 20 minutes later, Ward and Bowen left to meet defendant.
The following day, Bennett went to the Department of Motor Vehicles to ask for a copy of his pink slip. Thirty minutes after he made his request and was waiting, law enforcement showed up. The El Dorado County District Attorney's Office Investigator Mike Franzen arrived with a California Highway Patrol officer. They wanted to interview everyone that was at Bennett's house the day his motorcycle was stolen, including Stevens, the women who showed defendant around the house.
Stevens told Bennett she did not want to talk to the investigators, she and defendant had too many friends in common, and she did not want to get involved. Bennett invited Stevens to lunch one day but took her to the district attorney's office instead. She refused to be interviewed but confirmed defendant had taken the motorcycle. As she left the office, she called Ward and told him what Bennett had done.
Then, on or about May 22, 2012, Ward picked up Stevens and drove her to a rural home. Inside, there were five or six men playing video games and smoking marijuana. She tried to walk outside to the porch but was told not to leave. Several minutes later, defendant entered the house and took Stevens into another room to talk. He checked Stevens "for a wire" and took her cell phone. They talked about the motorcycle and the conversations Stevens had with law enforcement.
Defendant was not upset with Stevens and did not care if she testified, but offered to find her "a job not being a whore but like being a house mom to girls, like managing girls . . ." if she testified in his favor. He also suggested the next time the police tried to talk to her that she "could be blond [sic] and dumb" and "[k]ind of play up the blond [sic] airhead thing, you know, that [she's] kind of stupid and confused, or whatever." Defendant also told her to suggest that Bennett owed defendant.
The People subsequently charged defendant with first degree robbery, first degree burglary, assault with a firearm, vehicle theft, conspiracy to commit theft, and dissuading a witness. The People also alleged a principal was armed with a firearm during commission of the burglary and robbery, and defendant served three prior prison terms.
A jury found defendant guilty of attempted robbery (Penal Code, §§ 664, 211—count 1), first degree burglary (§ 459—count 2), vehicle theft (Vehicle Code, § 10851, subd. (a)—count 4), conspiracy to commit theft (§ 182, subd. (a)(1)—count 5), and dissuading a witness (§ 136.1, subd (b)(1)—count 6). The jury found defendant not guilty of robbery and assault with a firearm, and found not true the allegation that a principal was armed during the commission of the attempted robbery and burglary. In a bifurcated proceeding, the trial court found true the allegations that defendant served two prior prison terms. (§ 667.5, subd. (b).)
Undesignated statutory references are to the Penal Code.
The trial court originally sentenced defendant on April 25, 2014. The court found defendant's objective in committing the burglary, attempted robbery, and conspiracy (counts 1, 2, and 5) were the same and indicated "there would be a [section] 654 issue in dealing with those." The court then sentenced defendant to an aggregate term of nine years four months in state prison. To reach that term, the court sentenced defendant to the upper term of six years in state prison on count 2 and designated this the principle term. The court sentenced defendant to a concurrent term of four and a half years on count 1, eight months consecutive on count 4, four years concurrent on count 5, eight months consecutive on count 6, and two additional years for the prior prison terms.
In an unrelated matter (El Dorado County case No. P13CRF0371), which is not the subject of this appeal, the trial court sentenced defendant to an additional concurrent three-year term. --------
The court ordered defendant to pay various fines and fees, including a $40 court operations assessment (§ 1465.8) on each conviction, staying all but one, and a $30 criminal conviction assessment (Gov. Code, § 70373) on each conviction, again staying all but one. The court also awarded defendant 394 days of custody credit.
On January 21, 2015, after receiving a letter from the Department of Corrections and Rehabilitation, the trial court corrected the sentence imposed to reflect an aggregate term of eight years eight months in state prison. Defendant later moved the trial court to correct a clerical error in the abstract of judgment. Defendant noted the trial court initially indicated it would stay the sentence on defendant's convictions for attempted robbery and conspiracy pursuant to section 654, but then ordered the terms to be served concurrent to the principle term and did not stay them. The trial court again corrected the abstract of judgment reflecting the sentences imposed on defendant's convictions for attempted robbery and conspiracy were both concurrent and stayed.
II. DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and requests that we 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 defendant has not filed a supplemental brief.
We note an error at sentencing. The trial court imposed the mandatory $30 criminal conviction assessment on each count pursuant to Government Code section 70373, subdivision (a)(1), as well as the mandatory $40 court operations assessment pursuant to section 1465.8, subdivision (a)(1). The court however, purported to stay all but one of each of those assessments. Those assessments are mandatory and cannot be stayed. (People v. Woods (2010) 191 Cal.App.4th 269, 273.) The trial court's failure to impose these assessments is sentencing error which we correct on appeal. We will order the judgment modified to provide for both assessments on each conviction.
III. DISPOSITION
The judgment is modified to provide for a total $200 court operations assessment, $40 as to each conviction, and a total $150 criminal conviction assessment, $30 as to each conviction. The trial court is directed to amend the abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
NICHOLSON, Acting P. J. /S/_________
MURRAY, J.