Opinion
C085617
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. LEE JOSHUA OLSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16CF04096, 17CF00130)
Appointed counsel for defendant Lee Joshua Olson filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After examining the record, we conclude the trial court erred in failing to impose mandatory parole revocation restitution fines in case No. 16CF04096 (the grand theft case) and case No. 17CF00130 (the receipt of stolen property case), and the abstract of judgment contains several clerical errors that must be corrected. We shall modify the judgment to impose the appropriate parole revocation restitution fines pursuant to Penal Code section 1202.45, subdivision (a), suspended unless parole is revoked, and order that an amended abstract of judgment be prepared to correct the cited clerical errors. As so modified, we affirm the judgment.
Undesignated statutory references are to the Penal Code.
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.)
The facts underlying both cases are taken from the probation report to which the parties stipulated as the factual basis for defendant's no contest pleas. --------
Butte County Case No. 16CF04096 (grand theft)
On August 2, 2016, an officer was dispatched to Air Cooled Unlimited, a business in Oroville, regarding a theft. The business owner reported several individuals had entered the fenced area of the business and taken generators, weed-eaters, and other equipment. The business owner posted an online advertisement offering a reward for information regarding the burglary. Someone responded that defendant was involved and provided a description of his car and his current location. The business owner located defendant and detained him until police arrived. Defendant admitted burglarizing the business, claiming he had an arrangement with an individual to steal the items in exchange for methamphetamine. Approximately 1.8 grams of methamphetamine was found inside his nearby car.
An August 2016 complaint charged defendant with one count of felony grand theft of personal property exceeding $950 (§ 487, subd. (a), count one), and one count of misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count two). Defendant was released on his own recognizance.
Butte County Case No. 17CF00130 (receipt of stolen property)
On December 16, 2016, while defendant was out of custody in the grand theft case, officers were dispatched to an intersection where two individuals were allegedly opening Christmas presents on the side of the road. The individuals had stolen gasoline from the victim's vehicle. Police observed the suspects' vehicle and attempted to initiate a traffic stop, but the vehicle fled. The vehicle was later located nearby covered by pieces of wood. No one was found in or near the vehicle, but the car contained several items including a flat screen television, several iPad tablets, Christmas presents, jewelry, computers, cameras, and paperwork addressed to James Rogers. Methamphetamine was also found in the car. Defendant was contacted by police as he emerged from the nearby "brush."
Defendant told officers he had met Rogers a few weeks prior and he had supplied Rogers with drugs. On December 16, Rogers picked defendant up and asked him to sort through various items in his car; Rogers did not tell defendant where he got the items. Rogers gave defendant several items as a thank you for the earlier drugs. Although Rogers had opened the gas cap of his car, defendant claimed he could not find a hose to siphon any fuel from the victim's car; they drove off when the victim confronted them. After police followed them, Rogers accelerated down a side road and they abandoned the vehicle. In the abandoned vehicle, police found defendant's backpack with a tablet computer and hypodermic needles and 0.4 grams of methamphetamine was found in his pocket.
A January 2017 complaint charged defendant and Rogers with first degree residential burglary (§ 459). The complaint was later amended to add one count of receiving stolen property (§ 496, subd. (a)).
The Plea Bargain Resolving Both Cases
In May 2017, pursuant to a negotiated plea, defendant pleaded no contest to count of grand theft, misdemeanor possession of methamphetamine, and one count of receiving stolen property in exchange for a stipulated three-year eight-month sentence. He also stipulated the value of the property taken exceeded $950. Additional misdemeanor cases that were pending were dismissed on the prosecution's motion.
In August 2017, defendant appeared for sentencing. At the hearing, defendant announced he wanted to withdraw his plea. After a brief recess, however, defendant withdrew that request.
The court sentenced defendant to serve the stipulated three-year eight-month sentence, consisting of the upper term of three years for the grand theft conviction, a concurrent one-year term for the misdemeanor possession of methamphetamine, and a consecutive eight months for the receipt of stolen property offense. The court imposed a $300 restitution fine (§ 1202.4, subd. (b)) in the grand theft case, a $300 restitution fine (§ 1202.4, subd. (b)) in the receipt of stolen property case, a $40 court operations assessment for each of defendant's three convictions (§ 1465.8), a $30 criminal conviction assessment per conviction (Gov. Code, § 70373), and a $39 theft fine. The court ordered victim restitution, and found defendant had no ability to pay the crime lab fee, the drug program fee, the presentence investigative report fee, or attorney fees. Defendant was awarded 13 days of actual credit and 12 days of custody credit for a total of 25 days of presentence credit, which was credited towards the grand theft case. Defendant timely appealed in both cases.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requested that this court review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised of his 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.
After examining the record, we conclude the court erred by not imposing and suspending a mandatory parole revocation restitution fine in both the grand theft case and the receipt of stolen property case. While the court imposed $300 restitution fines pursuant to section 1202.4, subdivision (b), in each case, it did not impose an identical parole revocation restitution fine in each case, which section 1202.45 requires.
Subdivision (a) of section 1202.45 provides: "In every case where a person convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." (§ 1202.45, subd. (a).) Subdivision (c) provides such fines shall be suspended unless parole is revoked. (§ 1202.45, subd. (c).)
We shall modify the judgment to impose the appropriate parole revocation restitution fines, stayed unless parole is revoked. Because the abstract of judgment already lists a $300 parole revocation restitution fine for each case, the abstract need not be amended to reflect the fines.
In our review of the record, we have found multiple errors in the abstract of judgment that need to be corrected. "Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts." (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The abstract of judgment omits the $120 court operations assessment ($40 for each conviction), as well as the $90 criminal conviction assessment ($30 for each conviction). The court orally pronounced the proper assessments under section 1465.8 and Government Code section 70373, respectively, and the abstract of judgment must reflect the fees.
The abstract of judgment also improperly lists defendant's misdemeanor conviction for possession of a controlled substance in Item one that is intended for a defendant's felony convictions only. Defendant pleaded no contest to a misdemeanor and not a felony. Defendant's conviction for misdemeanor possession of a controlled substance under Health and Safety Code section 11377, subdivision (a), must be removed from the felony abstract of judgment.
We shall direct the trial court to amend the abstract of judgment to correct the cited clerical errors.
DISPOSITION
The judgment is modified to impose a $300 parole revocation restitution fine, suspended unless parole is revoked, in case No. 16CF04096 and in case No. 17CF00130. As so modified, the judgment is affirmed. The court is directed to prepare an amended abstract of judgment that reflects a $120 court operations assessment ($40 for each conviction) as well as a $90 criminal conviction assessment ($30 for each conviction), and that deletes defendant's misdemeanor conviction for possession of a controlled substance under Health and Safety Code section 11377, subdivision (a), from Item one. The clerk shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
RENNER, J.