Filed 12/13/18 P. v. Raisor CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

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Defendant Richard Dean Raisor and F. R. were married and had children together. In February 2017, defendant was at F. R.’s residence visiting their children. Defendant tried to choke F. R. with his hands. As she began to blackout, their daughter opened the door and told defendant to stop. Defendant walked outside and F. R. locked the door and armed herself with a steak knife. A few minutes later, defendant pounded on the door, demanding entry. When F. R. did not open the door, defendant kicked it open; he followed F. R. to the bedroom and tried to strangle her with a shoelace. F. R. stabbed him in the hand, and defendant left.

Defendant was charged with assault with a deadly weapon, assault by means of force likely to produce great bodily injury, petty theft, vandalism under $400, and cruelty to a child.

In October 2017, defendant pled no contest to assault by means of force likely to produce great bodily injury and cruelty to a child in exchange for a sentence of three to five years on probation and up to 364 days in county jail. He also executed a Cruz[1] waiver and was informed that he could be sentenced for up to four years if he failed to return for sentencing. The court conditionally dismissed the remaining counts with a Harvey[2] waiver.

Due to car problems, defendant failed to appear at the November 2017 sentencing hearing; the court held a bench warrant in abeyance and continued the matter for a week. Defendant failed to appear at the continued hearing and the court issued a warrant for his arrest. In May 2018, defendant waived his rights and admitted violating the Cruz waiver.

The next month, in June 2018, the court followed the recommendation of the probation officer, denied probation and sentenced defendant to the upper term of four years for the assault offense and a consecutive 180 days for the child cruelty offense. The remaining counts were dismissed.

For the felony assault count, the court imposed a $1,200 restitution fine, and a $1,200 parole revocation restitution fine. The court also imposed a $150 restitution fine for the misdemeanor child cruelty count. The court imposed an $80 court security fee and a $60 criminal conviction assessment and awarded defendant 87 days of actual credit and 86 days of conduct credit for a total of 173 days of credit. Defendant timely appealed.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 elapsed, and we have received no communication from defendant.

Having undertaken an examination of the entire record pursuant to Wende, we find the trial court erred in imposing a restitution fine as to each count. (People v. Sencion (2012) 211 Cal.App.4th 480, 483 [finding it was error to impose a restitution fine and a parole revocation restitution fine as to each count].) Defendant was charged in a single case and was subject to only one Penal Code section 1202.4, subdivision (b)(1) restitution fine and a single Penal Code section 1202.45 parole revocation restitution fine. (Ibid.) We find the error harmless, however, because the $1,350 combined total of the restitution fines -- $1,200 for the felony and $150 for the misdemeanor -- does not exceed the maximum statutory fine of $10,000. We shall modify the judgment to impose a single $1,350 restitution fine and an identical $1,350 parole revocation restitution fine, stayed unless parole is revoked.

We have also found an error on the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court can correct clerical errors in abstract of judgment that does not accurately reflect the oral judgment of a sentencing court].) At the sentencing hearing, the trial court orally pronounced an $80 court security fee and a $60 criminal conviction assessment based on defendant’s two criminal convictions. The abstract of judgment only reflects a $40 court security fee and a $30 criminal conviction assessment, however. We shall order that the abstract of judgment be corrected to reflect the court’s oral pronouncement of judgment.

DISPOSITION

The judgment is modified to impose a $1,350 restitution fine and a $1,350 parole revocation restitution fine, the latter of which is stayed unless parole is revoked. As so modified, the judgment is affirmed. The court clerk is directed to prepare an amended abstract of judgment that reflects the restitution fines as imposed as well as an $80 court security fee and a $60 criminal conviction assessment, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

/s/

Robie, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Murray, J.