P. v. Flaata
Filed 3/25/13 P. v. Flaata CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
DOUGLAS RAY FLAATA,
Defendant and Appellant.
2d Crim. No. B239300
(Super. Ct. No. F466777)
(San Luis Obispo County)
Douglas
Ray Flaata appeals a judgment entered following his nolo contendere plea to one
count of elder abuse, with an
admission that his victim suffered great bodily
awarded Flaata only 15 percent presentence conduct credit, and affirm. (§§ 2933.1, 667.5, subd. (c)(8).)
FACTS AND PROCEDURAL HISTORY
On
October 23, 2011, Flaata assaulted his longtime girlfriend E.W. According to the probation report, Flaata
choked E.W. into unconsciousness, tore "clumps" of hair from her
head, hit her in the face, kicked her in the head, and struck her with a chair
and his fist. E.W. was airlifted to a
hospital, where she spent two days recovering from her injuries, including
cracked ribs. At the time, E.W. was 74
years old and had been assaulted by Flaata on prior occasions.
By
felony complaint, the prosecutor charged Flaata with elder abuse (count 1),
making criminal threats (count 2), and inflicting corporal injury upon a spouse
or cohabitant (count 3). (§§ 368,
subd. (b)(1), 422, 273.5, subd. (a).)
The prosecutor also alleged that E.W. suffered great bodily injury, that
Flaata personally inflicted great bodily injury upon E.W., and that Flaata
served a prior prison term.
(§§ 368, subd. (b)(2), 12022.7, 667.5, subd. (b).)
On
November 21, 2011, Flaata waived his constitutional
rights and right to a preliminary examination, and pleaded nolo contendere
to elder abuse (count 1), and admitted that E.W. suffered great bodily
injury. (§ 368, subd. (b)(1),
(2).) The plea agreement provided for a
seven-year prison term and dismissal of the remaining counts with a waiver
pursuant to People v. Harvey (1979)
25 Cal.3d 754, 758. During the plea
colloquy, the trial court advised Flaata that he was "entering a plea of
no-contest to count 1 which requires the [district attorney] to prove that the
crime is an act that you committed under circumstances likely to produce great
bodily harm or death, that you inflicted some sort of pain, mental suffering on
this person whose age is over 70 years."
charges to which he was pleading.
On
January 30, 2012, the trial court sentenced Flaata to seven years imprisonment,
including two years for elder abuse and five years for the great bodily injury
allegation. (§ 368, subd. (b)(1),
(2)(B).) The court imposed a $1,400 restitution
fine, and a $1,400 parole revocation restitution fine (stayed). (§§ 1202.4, subd. (b), 1202.45.) It awarded Flaata 100 days of actual
presentence custody credit and 15 days of conduct credit pursuant to section
2933.1, subdivision (a), which limits worktime credit for persons convicted of
specified felonies. The court denied
Flaata's motion to award conduct credit pursuant to section 4019, but granted
his request for a certificate of probable cause regarding the issue.
Flaata
appeals and contends that he is not subject to the 15 percent limitation on
conduct credit pursuant to section 2933.1, subdivisions (a) and (c).
DISCUSSION
Flaata
argues that section 2933.1 applies only to the 23 violent felonies enumerated
in section 667.5, subdivision (c), and infliction of great bodily injury upon
an elder person is not an enumerated felony.
(§ 368, subd. (b)(1), (2).)
He concedes that section 667.5, subdivision (c)(8) lists "[a]ny
felony in which the defendant inflicts great bodily injury," but points
out that the statute states that the allegation must be "charged and
proved as provided for in Section 12022.7." Flaata contends that sections 2933.1 and
667.5, subdivision (c)(8) are clear and unambiguous, thus allowing him the
increased conduct credits provided by section 4019, subdivision (f). (People
v. Wade (2012) 204 Cal.App.4th 1142, 1149 ["'Where the statute is
clear, courts will not "interpret away clear language in favor of an
ambiguity that does not exist"'"].)
Flaata
adds that section 368, subdivision (j) expressly permits prosecution pursuant
to "both [section 368] and . . . [section] 12022.7," thus supporting his argument that
the sections do not punish "necessarily identical offenses." He also argues that the section 368,
subdivision (b)(2) enhancement does not require the personal infliction of great bodily injury, as does section
12022.7.
Section
2933.1, subdivision (a) provides:
"Notwithstanding any other law, any person who is convicted of a
felony offense listed in subdivision (c) of Section 667.5 shall accrue no more
than 15 percent of worktime credit, as defined in Section 2933." Section 2933.1 belongs to a group of statutes
limiting or prohibiting earning of presentence and postsentence credit for
persons who are convicted of crimes and sentenced to prison. (In re
Pope (2010) 50 Cal.4th 777, 781.)
Section
667.5, subdivision (c) does not expressly list elder abuse pursuant to section
368 as an enumerated offense. The
catchall provision of section 667.5, subdivision (c)(8), however, includes as a
violent offense "[a]ny felony in which the defendant inflicts great bodily
injury on any person other than an accomplice which has been charged and proved
as provided for in Section 12022.7 . . . ." Section
12022.7, subdivision (c) provides for a five-year enhancement (as does section
368, subdivision (b)(2)(B)) for "[a]ny person who personally inflicts
great bodily injury on a person who is 70 years of age or older, other than an
accomplice, in the commission of a felony or attempted felony . . . ."
The
trial court properly limited Flaata’s conduct credit because he pleaded nolo
contendere to section 368, subdivision (b)(1) and (2), which, when read
together, provide the necessary elements of section 12022.7. Section 368, subdivision (b)(1) punishes a
person who “willfully causes . . . or inflicts†pain or suffering upon an elder person. The court advised Flaata that he was entering
a nolo contendere plea admitting that he “inflicted some sort of pain, mental
suffering†on an elder person. Flaata
stated that he understood. He also
admitted the five-year bodily injury enhancement of section 368, subdivision
(b)(2)(B) that his victim "suffer[ed] great bodily injury." By his plea, Flaata admitted every element of
the charged offense and its enhancement.
(Boykin v. Alabama (1969) 395
U.S. 238, 242.) The "charged and
proved" requirement of section 667.5, subdivision (c)(8) has been
satisfied.
Well-established
rules of statutory construction require that we determine the Legislature's
intent in enacting a statute and adopt the construction that best effectuates
the law's purpose. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39
Cal.4th 192, 199.) In so doing, we look
to the statutory language, giving the words their ordinary and usual
meaning. (Ibid.) The Legislature's
stated intent in punishing elder abuse is to accord "special consideration
and protection" to crimes against elderly and dependent adults. (§ 368, subd. (a).) Sections 368, subdivision (b)(2) and 12022.7,
subdivision (c) each impose a five-year term for causing bodily injury to an
elderly person. Application of a more
lenient conduct credit to section 368 would not effectuate the stated
legislative intent.
Flaata
asserts that rejection of his argument results in any criminal offense that
defines great bodily injury by reference to section 12022.7 becoming a violent
felony pursuant to section 667.5, subdivision (c)(8), e.g., Welfare and
Institutions Code section 14107, subdivision (d) (Medi-Cal fraud that causes
great bodily injury). Interpretation of
that section is not before us. More
importantly, however, by his plea, Flaata admitted inflicting pain and
suffering on E.W., causing her great bodily injury.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN,
J.
PERREN,
J.
Barry T. LaBarbera, Judge
Superior Court County of San Luis Obispo
______________________________
Mark
R. Feeser,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code unless stated
otherwise.
name="_ftn2" title="">[2] References to section 12022.7 are to the version in effect prior to
repeal effective January 1, 2012.
