P. v. Garland

 

 

 

 

 

Filed 1/29/14  P. v. Garland CA3

NOT TO BE PUBLISHED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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD
APPELLATE DISTRICT

(Sacramento)

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CODY KEITH GARLAND,                           Defendant and Appellant.

C074078   (Super. Ct. No. 12F07052 & 12F07057)

 

 

            This
appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende).

            In
case No. 12F07052, a first amended complaint charged defendant Cody Keith
Garland with making criminal threats
(count one; Pen. Code, § 422),[1] violating a protective order (count two; § 166, subd. (c)(1)),
and brandishing a deadly weapon (count three; § 417, subd.
(a)(1)).  All counts were alleged to have
occurred on or about October 1, 2012.  Defendant was also alleged to have served two
prior prison terms (§ 667.5, subd. (b)).

            In
case No. 12F07057, a first amended complaint charged defendant with unlawfully
taking or driving a motor vehicle (counts one, three, & five; Veh. Code, § 10851,
subd. (a)); receiving a stolen vehicle (counts two, four, & six; § 496d,
subd. (a)); receiving stolen property (count seven; § 496, subd. (a)); and
passing a fraudulent check (count eight; § 476).  Counts one and two were alleged to have
occurred on or about and between August 27 and September 2, 2012;
counts three and four were alleged to have occurred on or about and between
August 7 and September 8, 2012; counts five and six were alleged to
have occurred on or about and between October 24 and October 26,
2012; count seven was alleged to have occurred on or about and between
August 29 and October 26, 2012; and count eight was alleged to have
occurred on or about October 26, 2012. 
The same prior prison terms were alleged as in case No. 12F07052.

            On
April 29, 2013, in case No. 12F07052, defendant pled no contest to assault with a
deadly weapon (§ 245, subd. (a)(4)), a reasonably related offense to count
one, for a stipulated state prison term of three years.  That same day in case No. 12F07057, defendant
pled no contest to counts one and three (Veh. Code, § 10851, subd. (a))
for an additional eight months consecutive on each count.  All remaining counts and allegations were to
be dismissed under the terms of the agreement.[2]

            The
prosecutor recited the factual basis for the plea as follows:

            “As
to 12F07052, the victim and defendant and [sic]
in a long dating relationship and have two children together, a 12-year-old and
a five-year-old.

            “About
a week prior to October 1st of 2012, the victim and the defendant terminated
their relationship.

            “The
victim[,] on October 1st of 2012, dropped off her son at [school].  The defendant followed the victim and threatened
her and said that he was going to beat her face in like a man, and he told her >You’re done; you’re done.  He then spit in her face.  She was very concerned for her safety, and he
also threw a cell phone at her and said that he was going to take their son out
of school.

            “During
the incident, he took out a Gerber knife tool out of his pocket and then walked
past her.  The victim was concerned for
her safety and her son’s
safety during the incident.

            “As
to 12F07057, Count One, on August 27th of 2012, in the [C]ounty of Sacramento, [v]ictim
Kenneth D[.]’s . . . car was taken without his permission from his
apartment parking lot, and all the keys were accounted for.

            “On
September 2nd of 2012, in the [C]ounty of Sacramento,
officers conducted a traffic stop on the vehicle that defendant was
driving.  The defendant was driving the
victim’s car without his permission.  The
car did not have license plates, the steering column had been tampered with,
and the VIN number was covered with fabric softener.  The victim does not know the defendant and
did not give him permission to drive the car.

            “As
to Count Three, on August 7th, 2012, [v]ictim
Robert S[.]’s vehicle was stolen from in front of his residence in Sacramento
[C]ounty.  All the keys were accounted
for.

            “On
September 8th,
2012, in the [C]ounty of Sacramento,
officers observed the defendant driving the victim’s vehicle without license
plates.  The defendant did not have
permission to drive the victim’s vehicle. 
Officers conducted a vehicle stop, and the defendant immediately put his
hands out the window without being told to do so.  The car had a shaved key in the ignition
which would commonly be used to steal cars.

            “The
defendant claimed that his wife had bought the car from Craigslist.  The witness was contacted who said that she
was not defendant’s wife but his girlfriend, and she denied that she had
purchased the car off of Craigslist. 
Victim did not know the defendant and did not give him permission to
drive the vehicle.”

            On
May 24,
2013, after denying defendant’s motion to
withdraw his plea, the trial court imposed a state prison sentence of four
years four months pursuant to the plea agreement, awarding defendant 414 days
of presentence custody credits (207 actual days and 207 conduct days).  The court imposed a $600 restitution fine and
a suspended parole revocation restitution fine in the same amount as to case
No. 12F07052, and a $400 restitution fine and a suspended parole revocation
restitution fine in the same amount as to case No. 12F07057.  The court also imposed a $120 court
operations fee (§ 1465.8) and a $60 conviction assessment fee (Gov. Code, § 70373).  The court dismissed the remaining counts in
both cases in the interests of justice.  The
court also dismissed case No. 12F07259 in the interest of justice with a >Harvey waiver.

            In
addition to sentencing on the above cases, the trial court also found that
defendant had admitted violating probation in case No. 12M02400, as to which
the record does not contain any further information.  The court imposed no additional time in this
case, but ordered a restitution fine of $140 (§ 1202.4).

            In
addition to the fines and fees mentioned above, the abstract of judgment (filed on May 31,
2013, one week after the sentencing hearing) states that defendant is to pay a
“booking fee” of “$331.98 x 2” and a “c[l]ass[ification] fee” of “$60.18 x 2”
under unspecified statutes.  The abstract
of judgment also states that defendant is to pay a total of $2,112.88 in victim
restitution in case No. 12F07057, consisting of $1,780.90 to victim Kenneth D.
and $331.98 to victim Robert S.  The
abstract of judgment does not mention the $140 restitution fine ordered by the
trial court in case No. 12M02400.

            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.

            However,
we must remand the matter to the trial court with directions to prepare an amended
abstract of judgment.  First, the new
abstract of judgment must delete the “booking fee” and “c[l]ass[ification]
fee,” which are not mandatory and were not imposed orally by the trial court at
sentencing.  (Gov. Code, § 29550.2
[court must find defendant has ability to pay jail booking and classification
fees]; People v. Zackery (2007) 147
Cal.App.4th 380, 385 [oral pronouncement of judgment prevails over any
contradictory written order].)  Second,
the new abstract of judgment must delete the award of victim restitution in
case No. 12F07057, which is not reflected in any statement by the trial court,
and must indicate instead that the court has reserved jurisdiction of victim
restitution in that case.  Third, the new
abstract of judgment must include the $140 restitution fine ordered by the
trial court in case No. 12M02400 pursuant to section 1202.4.

>DISPOSITION

            The
matter is remanded to the trial court with directions to prepare a corrected
abstract of judgment as described above and to forward a certified copy of the
corrected abstract of judgment to the Department of Corrections and
Rehabilitation.  In all other respects,
the judgment is affirmed.

 

 

                                                                                        BLEASE                             ,
Acting P. J.

 

 

We concur:

 

 

    BUTZ                                  , J.

 

 

    MURRAY                          , J.