P. v. Burrell
Filed 8/15/11 P. v. Burrell CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. DEON CHARLES BURRELL, Defendant and Appellant. | B228430 (Los Angeles County Super. Ct. No. BA371766) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Norman J. Shapiro, Judge. Affirmed as modified.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Deon Charles Burrell, appeals after a jury convicted him of willful infliction of corporal punishment upon a present or former cohabitant. (Pen. Code,[1] § 273.5, subd. (a).) Defendant was initially charged by information with a second count of willful harm or injury to a child. (§ 273a, subd. (a).) The information also alleged defendant had sustained four felony prior convictions and served three prior prison terms. (§ 667.5, subd. (b); 1203, subd. (e)(4).) We modify the judgment to impose a $30 court security fee and delete a section 1203.097 fine.
II. PROCEDURAL HISTORY
On August 5, 2010, defendant’s section 995 motion to dismiss count 2 was granted. After the jury returned its guilty verdict on count 1, defendant waived his right to a trial and admitted the prior conviction and prison term allegations were true. Defendant was sentenced to a total term of five years in prison, consisting of the high term of four years as to count 1, plus one consecutive year pursuant to section 667.5, subdivision (b). Defendant was awarded 306 days of credit, consisting 153 days of actual time plus 153 of conduct credit.
After the notice of appeal was filed, defendant requested the abstract of judgment be corrected to reflect four additional days of credit. On March 4, 2011, the trial court ordered the abstract of judgment corrected to reflect 310 days credit, consisting of 155 days of actual time and 155 days of conduct credit.
III. THE FACTS
On May 24, 2010, Lorena Medina telephoned defendant. Ms. Medina and defendant had been in a relationship for about six years. Ms. Medina told defendant the she was going to remove from her neck a tattoo in his name. She told him she was going to cover the previous tattoo with a new one. Ms. Medina then went to the tattoo parlor and tattooed over defendant’s name. She also got her lip pierced. She subsequently went to visit her sister.
At around 5:45 p.m., defendant drove to Ms. Medina’s sister’s apartment. A witness, Jimmy Francis, saw defendant “angrily” get out the car and slam the door. Defendant slammed the door really hard. Defendant went into the apartment. Defendant subsequently picked up Ms. Medina’s baby daughter and started to leave the apartment. Ms. Medina pursued defendant.
After they were outside, defendant began yelling and swearing at Ms. Medina. Ms. Medina took the baby from defendant. Then defendant struck Ms. Medina in the face and right temple with his fist. Mr. Francis observed defendant hitting Ms. Medina several times. This occurred while Ms. Medina was holding the baby. Mr. Francis called an emergency telephone operator.
Despite being punched Ms. Medina handed the baby to a sister. Defendant then punched Ms. Medina in the lip causing her to have a bloody lip around her piercing. Defendant also kicked Ms. Medina in the leg, which caused a two-inch laceration to her right shin. Defendant continued to hit Ms. Medina until a sister came outside and got into a fist fight with him. At least four Latinos then came outside and began punching defendant. Then defendant ran and hid in nearby auto repair shop.
When Los Angeles Police Officer Vincent Han arrived, he observed blood on Ms. Medina’s mouth. There were blood stains on her shirt. Ms. Medina told police officers that she and defendant had been living together before the incident. She moved out right after the incident. At the time of the trial, in October 2010, Ms. Medina had reunited in a relationship with defendant. She was also pregnant with defendant’s child.
Defendant testified on his own behalf. He denied hitting Ms. Medina. According to defendant, Ms. Medina accused him of cheating on her and then slapped him. As he tried to talk to her, she became violent, hitting him. Ms. Medina’s sister soon began hitting him too. The sister called him a “nigger” and told defendant to leave. The sister then stated she was going to get someone to kick defendant’s “ass.” The group of Latinos came outside and began punching him.
IV. DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the record, appellate counsel filed an “Opening Brief” in which no issues were raised. Instead, appellate counsel requested we independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. On April 7, 2011, we advised defendant that he had 30 days within which to personally submit any contentions or arguments he wishes us to consider. Although defendant personally requested a number of extensions, he has not raised any issues for this court to consider.
Although the abstract of judgment reflects a $30 court security fee pursuant to section 1465.8, subdivision (a)(1), the trial court did not impose the fee when sentencing defendant. The Attorney General argues and defendant does not dispute that the trial court had a mandatory duty to orally impose a $30 court security fee. (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) The trial court’s failure to orally impose the court security fee for the conviction is subject to correction on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Turner (2002) 96 Cal.App.4th 1409, 1413.) Accordingly, because defendant was convicted of one criminal offense, the judgment must be modified to impose a $30 court security fee.
In addition, the parties agree that the trial court erred when it imposed a $200 domestic violence fine under section 1203.097, subdivision (a)(5) because defendant was sentenced to prison and not placed on probation. Because defendant was not granted probation, the $200 domestic violence fine was not authorized by law and must be stricken. (People v. Smith (2001) 24 Cal.4th 849, 852-854; People v. Scott, supra, 9 Cal.4th at p. 354.)
V. DISPOSITION
The judgment is modified to impose a $30 court security fee pursuant to Penal Code section 1465.8. The $200 domestic violence fine imposed pursuant to Penal Code section 1203.097, subdivision (a)(5) is ordered stricken. The judgment is affirmed as modified. Upon remittitur issuance, the clerk of the superior court is directed to prepare an amended abstract of judgment reflecting the changes and forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com
