Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. Nos. SC121638A, SC122392A
McGuiness, P. J.
Appellant Rhonda Denise Nelson received an aggregate prison sentence of six years eight months after pleading guilty to two counts of commercial burglary (Pen. Code, § 459) arising out of two separate incidents. Appellant’s court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.
All further statutory references are to the Penal Code.
Factual and Procedural Background
On September 26, 2001, appellant was at the offices of Prime Vest Realty in San Rafael, where she inquired about renting a house. Appellant identified herself as Rhonda Ryan. Appellant agreed to rent the house and provided Prime Vest Realty with a check for $14,961 drawn on the account of Jerome Turner. The check was post-dated September 29, 2001, the date on which she took possession of the house. Appellant explained to Prime Vest Realty that the check was drawn on the account of her fiancé, with whom she was renting the house. The check was returned with a stop payment notice placed on it. Further investigation revealed that appellant had stolen a number of checks from Turner, who had reported the theft to the police in Napa. Appellant and Turner had been friends for a period of time before Turner discovered his checkbook missing. The checks were associated with an account that Turner had closed, and appellant was aware of that fact.
Because the conviction resulted from a guilty plea, the facts are taken in part from the probation report.
According to the probation report, appellant told Prime Vest Realty that Jerome Turner was her brother.
On October 18, 2001, the Marin County District Attorney filed a complaint charging appellant, identified as Rhonda Ryan, with one count of commercial burglary in case No. SC121638A (hereafter “Case 1”). The district attorney alleged that appellant had entered a commercial building occupied by Prime Vest Realty with the intent to commit larceny.
On October 27, 2001, a salesperson at Nordstrom received a phone call from appellant, who identified herself as Rhonda Rose. Appellant requested that an outfit be set aside for her and supplied a credit card number by telephone to pay for the clothing, which cost $488.99. When she picked up the clothing, she provided information to Nordstrom identifying herself as Rhonda Nelson. Upon review of its records, Nordstrom determined that appellant had made another purchase in the amount of $87.74 using the same credit card. An investigation by the loss prevention department at Nordstrom revealed that the holder of the credit card, Benjamin Rose, was unaware that someone was fraudulently using his credit card. Rose had supplied his credit card number to an employee at a car dealership for purposes of arranging for delivery of a vehicle. An investigation by the Twin Cities Police Department determined that appellant was the employee who had taken Rose’s credit card number. Rose confirmed that he had not given appellant permission to use his credit card for any purpose other than arranging to have a vehicle delivered to a car dealership in Marin County.
On December 10, 2001, the Marin County District Attorney filed a complaint charging appellant with one count of commercial burglary in case No. SC122392A (hereafter “Case 2”). The district attorney alleged that appellant had entered a commercial building owned by Nordstrom with the intent to commit larceny. It was further alleged pursuant to section 12022.1 that appellant committed the offense in Case 2 while released from custody on six different criminal matters, identified as Case 1 in the Marin County Superior Court plus five matters in the Napa County Superior Court alleging violations of section 476 (case No. CR105008), section 537, subdivision (a) (case No. CR105142), section 459 (case No. 105723), sections 422 and 273.5, subdivision (a) (case No. CR34104), and section 476 (case No. CR105915).
Section 12022.1, subdivision (b) provides: “Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.”
On December 27, 2002, the district attorney filed an amended complaint in Case 1, adding allegations pursuant to section 12022.1 to the effect that appellant had committed the offense in Case 1 while on release from custody in the same five Napa County criminal matters that had been identified in the complaint in Case 2.
On January 3, 2003, appellant pleaded guilty as charged in Cases 1 and 2. Appellant acknowledged that she could be sentenced to a maximum of 13 years in Case 1 and 15 years in Case 2. However, in exchange for her plea, the court promised not to sentence appellant to state prison.
In the probation report prepared for sentencing, appellant’s probation officer recommended against granting probation and urged that appellant be committed to state prison. Among other things, the probation report concluded that appellant could be described as a “financial predator” who had a “significant history of deceitful behavior regarding pecuniary matters.” The probation officer stated that “had the Court been aware of [appellant’s] history, the current plea agreement that is in place would not have been offered.” In a sentencing statement filed on behalf of the People on June 12, 2003, the district attorney argued that the court had agreed to the plea deal based on limited information indicating that appellant had only one 1998 misdemeanor conviction and some felony theft charges from Napa County that were the outgrowth of a drug problem. The district attorney expressed its confidence that, “had the Court been aware of the nature and extent of [appellant’s] criminality at the time of the pretrial conference,” it would not have promised probation to appellant. The district attorney urged the court to withdraw its promise of probation, allow appellant to withdraw her plea, and set the matter for a preliminary hearing.
At a hearing on June 13, 2003, the trial court agreed with the district attorney, concluding it could not in good conscience grant probation pursuant to the plea. After the court explained that appellant was entitled to withdraw her plea, appellant agreed to withdraw her guilty pleas. She also agreed to waive time with respect to the setting of the preliminary hearing.
Following a preliminary hearing held on January 8, 2004, appellant was held to answer on the charges contained in Cases 1 and 2. On January 27, 2004, the district attorney filed a four-count information in Case 1 and a two-count information in Case 2. In Case 1, the information charged appellant with commercial burglary (§ 459; count 1), possessing a completed forged instrument (§ 475, subd. (a); count 2), committing forgery (§ 470, subd. (d); count 3), and receiving stolen property (§ 496, subd. (a); count 4). The information further alleged pursuant to section 12022.1 that at the time of the charged offenses appellant was released from custody on felony charges in five different cases then pending in Napa County. In Case 2, the information charged appellant with committing a commercial burglary (§ 459; count 1) and fraudulently using an access card (§ 484g; count 2). The information further alleged pursuant to section 12022.1 that at the time of the charged offenses appellant was released from custody on felony charges in Case 1 as well as five different Napa County cases.
The five Napa County cases were the same ones identified in the amended complaint filed on December 27, 2002.
On April 1, 2004, pursuant to a negotiated disposition, appellant pleaded guilty to count 1 (§ 459) in Case 1 and count 1 (§ 459) in Case 2. With respect to Case 2, appellant admitted two violations of section 12022.1. Specifically, she admitted that at the time of the offense she had been released from custody on the charge alleged in Case 1. She further admitted that at the time of the offense in Case 2 she had been released from custody by the Napa County Superior Court in case No. CR105008, alleging a felony violation of section 476. In exchange for the plea, the district attorney agreed to dismiss all of the remaining charges and enhancements alleged in Cases 1 and 2. The parties stipulated that the transcript of the preliminary hearing provided a factual basis for the plea.
Appellant failed to appear for sentencing in 2004. Appellant’s probation officer explained appellant’s absence in a June 2007 memorandum reporting that appellant had reoffended out-of-state, had “incurred new felony charges in Michigan and also has been commitment [sic] to the federal penitentiary.”
On May 25, 2007, appellant’s trial attorney appeared before the court and represented that appellant wished to be sentenced in abstentia pursuant to section 1193 in Cases 1 and 2. At the time, appellant was in federal custody in Dublin, California, awaiting to be transported to Michigan to serve out a federal sentence. The court continued the matter to receive an updated sentencing recommendation from the probation department.
In a hearing held on June 21, 2007, the trial court found it was authorized to sentence appellant in abstentia in Case 1 and Case 2 under section 1193, subdivision (a). The court noted that appellant had submitted a notarized letter dated April 12, 2007, requesting that judgment be pronounced in her absence in Cases 1 and 2. The court further noted that appellant was represented by counsel at the sentencing hearing, as appellant had requested in her notarized letter. The court proceeded to pronounce sentence in appellant’s absence and ordered that appellant serve any sentence imposed in Case 1 or 2 consecutively to any sentence she might currently be serving.
The court imposed a total aggregate sentence in Cases 1 and 2 of six years eight months, calculated as follows. In Case 2, the court sentenced appellant to the middle term of two years on the conviction for commercial burglary. The court treated the commercial burglary conviction in Case 2 as the principal term. The court imposed two years for each of the two section 12022.1 enhancements, for a total of six years in Case 2. In Case 1, the court ordered appellant to serve a consecutive term of imprisonment for the commercial burglary conviction, imposing an additional eight months imprisonment, or one-third of the middle term of two years. (§ 1170.1, subd. (a).)
In both Case 1 and Case 2, the court ordered appellant to pay a $600 restitution fine pursuant to section 1202.4, a $600 fine parole revocation fine pursuant to section 1202.45, suspended unless parole is revoked, and a $20 court security fee pursuant to section 1465.8. The court ordered that appellant’s parole upon release from prison would not exceed three years, and it reserved jurisdiction under section 1202.4 to impose an appropriate victim restitution order.
At the time of sentencing, appellant was not awarded any presentence credit for time served. An amended abstract of judgment reflects that, while this matter was on appeal, the trial court awarded appellant a total of 27 days of presentence credit, composed of 19 actual days served plus 8 days of conduct credit.
Appellant filed a timely notice of appeal in Cases 1 and 2. Appellant did not seek a certificate of probable cause.
Discussion
Appellant’s counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so. We have reviewed the entire record and conclude no issue warrants further briefing.
We note, however, that the amended abstract of judgment contains two clerical errors, neither of which affects the calculation of appellant’s sentence. First, although the amended abstract properly reflects that appellant was convicted in Case 2 on April 1, 2004, it incorrectly recites that appellant was convicted in Case 1 on January 3, 2003. The conviction date should be April 1, 2004, for both cases. Second, one of the two 12022.1 enhancements is incorrectly listed as an enhancement under “PC 12022.4,” instead of “PC 12022.1.” Section 12022.4, which imposes an enhancement for supplying a firearm to aid or abet the commission of a felony, plainly does not apply. Although these clerical errors do not affect the calculation of the sentence, they should be corrected to avoid confusion in the future.
Disposition
The judgment is affirmed. The trial court is directed to correct the amended abstract of judgment to reflect that both sentence enhancements associated with count 1A were imposed under section 12022.1, and to reflect that the date of conviction for both count 1A and count 1B is “04-01-04.” The court shall forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.