P. v. Clay
Filed 1/29/13 P. v. Clay CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
MITCHELL DAVID CLAY,
Defendant
and Appellant.
E056618
(Super.Ct.No.
FVI1100249)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Jules E. Fleuret, Judge. Affirmed
as modified.
Sylvia
Whatley Beckham, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance by Plaintiff and Respondent.
Pursuant
to a plea agreement, defendant and appellant Mitchell David Clay pled no
contest to misdemeanor assault with a
deadly weapon. (Pen. Code, § 245,
subd. (a)(1).) In exchange, the
remaining allegation was dismissed, and defendant was sentenced to 365 days with
credit for time served of 365 days.
Following a restitution hearing, defendant was ordered to pay victim
restitution in the amount of $4,961.40, plus a 10 percent collection fee. Defendant appeals from the judgment,
challenging the sentence or other matters occurring after the plea. We will affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
On
January 25, 2011, defendant
hit his neighbor in the face with a pipe because he believed the neighbor was
dumping trash in the desert near their residence. After defendant left, the victim drove
himself to a hospital where he received seven stitches near his left eye.
On
February 24, 2011, following a preliminary hearing, an information was filed
charging defendant with felony assault
with a deadly weapon. (Pen. Code, §
245, subd. (a)(1).) The information
further alleged that defendant had inflicted great bodily injury upon the
victim. (Pen. Code, § 12022.8.)
On
May 18, 2012, the trial
court granted the People’s oral motion to reduce the charge to a
misdemeanor. (Pen. Code, § 17, subd.
(b).) Pursuant to a plea agreement,
defendant thereafter pled no contest to misdemeanor assault with a deadly
weapon in exchange for a sentence of 365 days with credit for time served and
the dismissal of the enhancement allegation.
The parties also stipulated that the trial court would retain
jurisdiction to impose victim restitution pursuant to Penal Code section
1202.46 at a later date. The trial court
found that the plea was entered into freely and voluntarily, and that defendant
knowingly and intelligently waived his rights.
The
restitution hearing was held on June
22, 2012. At that time,
defense counsel objected on the grounds that the trial court had lost
jurisdiction to order restitution and collect the amount because it was a
terminal disposition, and defendant had completed service of the sentence. The trial court overruled the objection,
finding that the court had jurisdiction “based on the statutory requirement that
restitution be ordered and the agreement between the parties.†The trial court thereafter ordered defendant
to pay victim restitution in the amount of $4,961.40 plus a 10 percent
collection fee.
On
June 25, 2012, defendant
filed a notice of appeal, challenging
the sentence or other matters occurring after the plea.
DISCUSSION
Defendant
appealed and, upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California
(1967) 386 U.S. 738, setting forth a statement of the case, a summary of the
facts, potential arguable issues, and requesting this court conduct an
independent review of the record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record
for potential error and find no arguable issues.
However,
we note that the May 18, 2012 plea hearing minute order should be corrected to
note that defendant pled “[n]o contest†rather than guilty.
We
also note that the trial court erred in calculating defendant’s restitution
amount. The trial court stated: “I will order restitution in the amount of
$4,961.40 plus the 10 percent collection fee for a total of $5,010.40.†However, the total should be $5,457.54
($4,961.40 plus $496.14). The June 22, 2012 restitution hearing
minute order should therefore be amended accordingly.
DISPOSITION
The
superior court clerk is directed to amend both the June 22, 2012 restitution hearing
accordance with this opinion. In all
other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] The factual background is taken from the
police reports.
