Opinion
A152600
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. DENISE NICHOLE MATTSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1701129)
Defendant Denise Nichole Mattson appeals from a judgment entered after she pled guilty to one count of first degree burglary (Pen. Code, § 459) (count one) and one count of first degree residential robbery (§ 211) (count two), both violent and serious felonies (§§ 667.5, subds. (c)(9), (c)(21), 1192.7, subds. (c)(18)-(c)(19)), and the trial court sentenced her to four years in prison. Defendant's counsel on appeal has filed an opening brief raising no issues and asking that this court conduct an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant has been notified of her right to personally file a supplemental brief, but has not done so. We have reviewed the record, and affirm the judgment as modified to correct an error in sentencing.
All unspecified statutory references in this decision are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
The facts are taken from the probation officer's pre-plea report.
According to a police report, on March 1, 2017, the victim reported a home invasion-style robbery. A man rang the victim's doorbell, the victim reported, and, when the victim opened his door, pushed him onto the couch, and put a handgun to his cheek. The victim then noticed a woman, later identified as defendant, inside his house. Defendant appeared to be searching for something; then she and her accomplice departed. After they left, the victim noticed the following items were missing: his wallet with his credit cards; a solid gold money clip, holding $70; and two key fobs.
There was a factual dispute about whether a real gun was used.
The victim reported the replacement value of the money clip was $1,200 and the combined replacement value of the two key fobs was $525.
The victim called the police, and was still speaking with the deputies who responded, when he received an email alerting him to suspicious activity on his credit cards. The victim's credit cards reportedly were used for purchases at a gas station about 30 minutes after the victim called the police, and then to buy a computer with a protection plan at a second store. Defendant was identified on the gas station's surveillance video purchasing fuel and other items. The woman who purchased the computer at the second store provided the name "Denise Wesh" and gave "D.K.mattson3@gmail.com" as her address for the protection plan. Defendant and her accomplice also were caught on a surveillance video at a third store paying about $600 for another purchase.
Defendant was arrested and questioned on March 3, 2017. She claimed another woman gave her the credit cards, and told her that she could keep some of her purchases. Thereafter, defendant was charged in a different case (People v. Mattson (Super. Ct. Humboldt County, 2017, No. CR1701081)) (the first case) with receiving stolen property (§ 496, subd. (a)) and grand theft (§ 484g, subd. (a)), and was placed on supervised release.
On March 7, 2017, defendant contacted the police and admitted she committed the robbery with her accomplice. Defendant told the police her accomplice had proposed the idea two weeks before they carried it out, that they both carried imitation guns, and that they hoped to find a cash box they thought the victim kept in his residence. On March 10, 2017, the People filed the complaint in this case (People v. Mattson (Super. Ct. Humboldt County, 2017, No. CR1701129)) (the current or second case), and defendant again was placed on supervised release.
At some point, defendant was charged in a third case (People v. Mattson (Super. Ct. Humboldt County, 2017, No. CR1702014)) (the third case), with a single felony count of grand theft of personal property (§ 487, subd. (a)). According to the People's subsequent motion to consolidate cases, this charge arose from an incident on November 29, 2016, when defendant and a male accomplice left a casino with a "cash can" that itself was worth about $108 and contained about $1,890 in bills.
According to the People's motion, surveillance video showed defendant taking the can, the father of two of defendant's children later identified her from a still image captured on the video, and defendant admitted her guilt when questioned.
On July 20, 2017, the People filed an information in the current case, charging defendant with one count of first degree burglary (§ 459) and one count of first degree robbery (§ 211), both violent and serious felonies (§§ 667.5, subds. (c)(9), (c)(21), 1192.7, subds. (c)(18)-(c)(19)).
The trial court scheduled a date to hear the People's motion to consolidate cases and a trial date. The dates were vacated, however, on August 24, 2017, when defendant entered an open plea of guilty to the two counts charged in the second case, with a Harvey waiver, in exchange for the People's dismissing the charges in the first and third cases.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
In its pre-plea report, probation recommended a suspended sentence and three years of supervised probation. Before defendant entered her plea, however, the People advised that they did not agree with the recommendation; the trial judge also told defendant that he might not follow probation's recommendation, particularly if the People and the victim opposed it. Defendant's attorney assured the court that defendant understood this point.
In response to questions from the trial judge, defendant confirmed she had read the entire plea agreement, understood the trial rights she was waiving and the consequences of the plea, and had no questions.
The trial judge asked whether defendant understood she would be pleading guilty to two felonies that would constitute two strike convictions. Defendant responded, "I do now." Hearing this response, the court gave defendant an opportunity to confer with her attorney, and then posed the following questions, to which defendant provided the following answers: "THE COURT: I'm sorry. Go ahead." "THE DEFENDANT: I said I do understand." "THE COURT: Okay. So you understand that by entering pleas of guilty to first-degree burglary . . . [and] robbery in the first degree, those are both strike offenses?" "THE DEFENDANT: I do." "THE COURT: And the effect of that is if you were to have another strike offense in the future, you could receive a mand - -- and you were found guilty of the third strike offense, then also these two were alleged and proven, you could receive a sentence of 25 years to life in prison. Do you understand that?" "THE DEFENDANT: I do." Completing the colloquy regarding defendant's plea, the court accepted it as knowing, intelligent, and voluntary.
At the sentencing hearing the following day, August 25, 2017, defendant's attorney asked the court to adopt probation's recommendation, observing that defendant had no prior felony convictions as an adult, had taken responsibility for her conduct at an early stage, was struggling with a recent heroin addiction, recognized the seriousness of her crimes, and hoped to begin a treatment program. The People opposed a grant of probation, and asked the court instead to impose the middle term of four years on the robbery count, with the sentence on the burglary count to run concurrently, reasoning that defendant's conduct was serious—involving premeditation, the invasion of the victim's home, and the threatened use of an apparent firearm—defendant's heroin addiction made it likely she would repeat the conduct to get money, and it would be an act of sufficient leniency to impose concurrent rather than consecutive terms. The victim then addressed the court; he stated that he agreed with the People's position, and thought a period of incarceration—"a year or two or so"—was appropriate to allow defendant to "clean up her act."
After hearing further argument from defense counsel and the People, the trial court found that defendant committed the crimes of burglary and robbery at the same time, making concurrent terms appropriate, and imposed the middle term of four years on each count. While acknowledging the existence of mitigating circumstances—including defendant's otherwise clean record as an adult, her heroin addiction, and the fact she was a parent—the trial court judge concluded probation was not appropriate, given the gravity of the crime. Defendant and her accomplice committed a home invasion robbery, the judge observed, entering the victim's home, threatening the victim with an apparent firearm, taking his property, and then almost immediately using his credit cards at local businesses.
The court imposed a $1,200 restitution fine (§ 1202.4, subd. (b)); a suspended $1,200 parole revocation restitution fine (§ 1202.45); an $80 court operations assessment fee (§ 1465.8); and a $60 court facilities funding assessment (Gov. Code, § 70373). The court also ordered victim restitution in an amount to be determined. Defendant received 87 days of presentence credit, based on 76 actual days and 11 days of conduct credit.
Defendant and her counsel both filed timely notices of appeal, and defendant included a request for a certificate of probable cause, which was not granted.
DISCUSSION
Following the Wende guidelines, we have reviewed counsel's brief and the entire appellate record. Defendant has not availed herself of the opportunity to file a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106, 111 [appellate court must address issues raised personally by appellant in a Wende proceeding]), nor has she requested to have counsel relieved. We have identified no errors, with the exception of a minor error in sentencing.
The trial court ordered defendant to serve concurrent terms for robbery (count two) and burglary (count one), but erred in failing to stay one of those terms. Section 654 applies because the undisputed record establishes that the burglary and robbery were parts of a single continuous course of conduct that shared a single criminal objective. (See, e.g., People v. Perry (2007) 154 Cal.App.4th 1521, 1526-1528; People v. Le (2006) 136 Cal.App.4th 925, 930-932.) "[W]hen a trial court determines that section 654 applies to a particular count, the trial court must impose sentence on that count and then stay execution of that sentence." (People v. Alford (2010) 180 Cal.App.4th 1463, 1466.)
There is no need to modify the fees and assessments imposed by the trial court. It is apparent that the trial court calculated the $1,200 restitution fine under the formula provided by section 1202.4, subdivision (b)(2) [court may determine the amount of the fine as the product of the $300 minimum fine multiplied by the number of years of imprisonment the defendant is ordered] for only one convicted count. The court security fee and court facilities assessment apply to each count of which a defendant is convicted, even if sentence on the count is stayed under section 654. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484.)
DISPOSITION
The judgment is ordered modified to reflect that the sentence on count one, burglary in the first degree, is stayed pursuant to Penal Code section 654. As so modified, the judgment is affirmed. The superior court is ordered to send a certified copy of the corrected abstract of judgment to the Department of Corrections.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.