Opinion
C081319
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. KENNETH STEVEN ROBINSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14SCR08269)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
I. BACKGROUND
We provide the following brief description of the facts and procedural history. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
A felony complaint, later deemed an information, filed on July 14, 2014, charged defendant Kenneth Steven Robinson with possession of a counterfeiting apparatus (count I—Pen. Code, § 480, subd. (a)), passing a fraudulent check (count II—§ 476), possessing a fraudulent check (count III—§ 475, subd. (a)), possessing an unfinished check with intent to defraud (count IV—§ 475, subd. (b)), forgery (counts V-IX—§ 470, subd. (a)), driving under the influence of alcohol with a prior DUI conviction (count X—Veh. Code, §§ 23550.5, subd. (a), 23152, subd. (a)), driving with a blood-alcohol content of 0.08 percent or more with a prior DUI conviction (count XI—Veh. Code, §§ 23550.5, subd. (a), 23152, subd. (b)), driving with a suspended or revoked license, a misdemeanor (count XII—Veh. Code, § 14601.2, subd. (a)), unlawfully operating a vehicle not equipped with a functioning ignition interlock device, a misdemeanor (count XIII—Veh. Code, § 23247, subd. (e)), presenting an invalid registration or driver's license, an infraction (count XIV—Veh. Code, § 4462, subd. (b)), driving with a blood-alcohol content of 0.01 percent or greater while on probation for DUI, an infraction (count XV—Veh. Code, § 23154, subd. (a)), driving without insurance, an infraction (count XVI—Veh. Code, § 16028, subd. (a)), and driving with an open container of alcohol, an infraction (count XVII—Veh. Code, § 23223, subd. (a)). As to counts I through XI, the information alleged that defendant had five prior felony convictions and five prior prison terms. (§§ 667.5, 667.5, subd. (b).)
Undesignated statutory references are to the Penal Code. --------
On February 5, 2015, defendant pleaded guilty to counts I and V through X, and admitted one prior DUI conviction and five prior prison terms, with the understanding that the trial court would dismiss the remaining charges, that defendant's maximum exposure was 13 years (including the four-year upper term on count I), and that the People would not seek state prison on the condition that defendant would be accepted into the Jericho House rehabilitation program for 18 months of residential treatment. Sentencing was deferred to April 3, 2015. The parties stipulated that the police reports would provide a factual basis for the plea.
As summarized in the probation report, the police reports showed that on July 8, 2014, a law enforcement officer stopped defendant's car for speeding. The officer smelled alcohol on defendant's breath and determined that defendant was under the influence of alcohol. His driver's license record revealed that his license was suspended for a previous DUI conviction and he was currently on formal probation. An inventory search of defendant's car found an open bottle of vodka and items the officer believed were possessed to forge checks.
A more thorough inventory found numerous sheets of blank checks, along with checks in various persons' names and for different amounts, which appeared to be doctored, a sheet of trial checks, a "Bookkeeper" CD, an eraser, a piece of clay, a laptop, two California identification cards and Social Security cards, three blank Bank of America checks and a loan offer, and two debit cards. The majority of the checks had been altered. The Bank of America checks belonged to a person who had reported his mail stolen. The California identification and Social Security cards were also stolen.
Defendant was released to the Jericho House on March 9, 2015. On April 3, 2015, the trial court learned that defendant had absconded from Jericho House within a day of his admittance. A bench warrant was issued, and defendant was arrested on September 28, 2015.
On November 13, 2015, when the matter came on for sentencing, defense counsel notified the trial court that defendant wished to withdraw his plea. The court put the matter over to December 11, 2015.
On December 11, 2015, the parties informed the trial court that the 13-year maximum calculated at the time of the plea agreement was erroneous because defendant had only four prior prison terms (two of his five prior convictions were served at the same time). At defense counsel's request, the court appointed another attorney to investigate whether there was any basis for defendant to withdraw his plea.
On December 18, 2015, the appointed attorney informed the trial court that he had found no basis for withdrawal of defendant's plea. Rejecting defense counsel's plea for probation, the court imposed an aggregate state prison term of nine years four months, consisting of the four-year upper term on count I, eight months consecutive on counts V and X, and one year consecutive for each of the four prior prison terms (eight-month sentences on counts VI through IX were run concurrent). The court awarded 653 total days of presentence custody credit (327 actual days and 326 conduct days). The court imposed a $3,000 restitution fine (§ 1202.4) and a $3,000 suspended parole revocation restitution fine (§ 1202.45). The court also imposed victim restitution in an amount to be determined. (§ 1202.4, subd. (f).)
Defendant filed a timely notice of appeal. The trial court denied his request for 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. (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 elapsed, and we 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.
II. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
DUARTE, J.