P. v. Bryant

Filed 12/18/09 P. v. Bryant 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

Muriel Ketelsen allowed defendant Sean Michael Bryant, a family friend, to reside on her property in Redding while he performed work on her property in Igo.[1] Sometime in January 2009, defendant stole several items from the Igo property, including acetylene torch/welders, bathroom fixtures, chainsaws, air beds, blankets, comforters, solar showers, a shower tent, a solar lantern, solar flashlights, toilet paper, batteries and a battery charger, camouflage tarps, and other items. Investigating officers conducted a parole search of a travel trailer on the Redding property and found several of Ketelsens items that had been taken from the Igo property as well as the Redding property.

Defendant pleaded guilty to second degree commercial burglary. (Pen. Code,  459, 460, subd. (b).) In exchange, two related counts and two unrelated cases were dismissed.

Following a contested restitution hearing, the trial court found that defendants testimony was not credible in light of the evidence and record before the court. Defendant was ordered to make restitution to Ketelsen in the amount of $18,000.

Defendant was sentenced to state prison for two years concurrent to any time imposed for parole violation, awarded 84 days custody credit and 42 days conduct credit, and ordered to pay a $400 restitution fine (Pen. Code,  1202.4), a $400 restitution fine suspended unless parole is revoked (Pen. Code,  1202.45), a $20 court security fee (Pen. Code,  1465.8), a $36 theft fine (Pen. Code,  1202.5) including penalty assessments, and a $30 court facilities assessment (Gov. Code,  70373). Defendants request for a certificate of probable cause was denied.

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. (People v. Wende (1979) 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.

Defendant filed a supplemental brief conceding that he had taken items from the Igo property but denying that he had taken any items from the Redding property. To the extent that this argument challenges the stipulated factual basis for the plea, as set forth in the sheriffs report, it is barred by the denial of a certificate for probable cause. (People v.Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v.Panizzon (1996) 13 Cal.4th 68, 74-75.)

To the extent that defendants argument challenges the amount of restitution, it fails because it parallels defendants testimony at the contested restitution hearing, which the trial court found to be not credible. Nothing in the supplemental brief identifies any error with respect to the courts credibility determination. Nor does any such error appear from our examination of the record.

Finally, defendant asks us to look into the prices used to compute the amount of restitution due for various items of stolen property. We construe this statement as a request for information that was not before the trial court and thus is not a part of the appellate record. Seeking out such information is beyond the scope of our review.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

We note a minor error on the abstract of judgment. This court has explained that All fines and fees must be set forth in the abstract of judgment. [Citations.] (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Thus, the various components of the Penal Code section 1202.5 theft fine, set forth in the sentencing minutes, must be included on the abstract.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

BLEASE , Acting P. J.

We concur:

SIMS , J.

NICHOLSON , J.

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[1] Because the matter was resolved by plea, our statement of facts is taken from the sheriffs department report. The parties stipulated that the report contained a factual basis for the plea.