Filed 9/24/18 P. v. Aguas CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Scott A. Steiner, Judge. Affirmed.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Roberto Patino Aguas, Jr. (Aguas) appeals from the judgment entered after a jury found him guilty of receiving a stolen vehicle with a prior felony conviction and receiving stolen property. He contends that, at the sentencing hearing, the trial court erred by imposing a narcotics offender registration requirement.

We affirm. At the sentencing hearing, after the trial court imposed sentence in the instant case, the court sentenced Aguas in two drug misdemeanor cases and, in doing so, imposed the narcotics offender registration requirement of which Aguas complains. The court did not impose that requirement in the instant case. We decline Aguas’s invitation in his appellate reply brief to review whether the narcotics offender registration requirement was properly imposed in a case that is not before us. We also decline to address the separate contentions of error the Attorney General has raised for the first time in the appellate respondent’s brief and without filing a notice of appeal.

Procedural History[1]

Aguas was charged in an information with (1) taking a vehicle with a prior conviction in violation of Penal Code section 666.5, subdivision (a)[2] and Vehicle Code section 10851, subdivision (a) (count 1);[3] (2) receiving a stolen vehicle with a prior felony conviction in violation of sections 666.5, subdivision (a) and 496d, subdivision (a) (count 2); and (3) receiving stolen property in violation of section 496, subdivision (a) (count 3). The information further alleged Aguas had served two prior prison terms within the meaning of section 667.5, subdivision (b), and had been previously convicted of a serious and violent felony pursuant to sections 667, subdivisions (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1).

The jury found Aguas guilty on counts 2 and 3, and not guilty on count 1. As to count 3, the jury found the value of property involved was more than $950. Aguas admitted the prior prison term and prior strike sentencing enhancement allegations. Aguas moved the trial court to strike the prior strike sentencing enhancement; the court denied the motion.

The trial court sentenced Aguas to a total of eight years in prison by imposing a six-year term on count 2 (double the middle term); a concurrent sentence of four years on count 3 (double the middle term); and a consecutive term of one year for each of the two prior prison term enhancement allegations admitted by Aguas.

Aguas appealed.

Discussion

I.

The Trial Court Did Not Order Aguas to Register as a Narcotics Offender in This Case.

In his amended appellate opening brief, Aguas argues the trial court erred at the sentencing hearing by ordering Aguas to register as a narcotics offender under Health and Safety Code section 11590 because Aguas was neither charged with nor convicted of any drug offense. No narcotics offender registration requirement appears in the court’s minutes or in the abstract of judgment issued in this case.

Aguas’s argument stems from the court’s comment at the sentencing hearing that “[t]here’s a mandatory H&S 11590 registration that I’m also required—imposing this order too.” As pointed out by the Attorney General in the appellate respondent’s brief, after the court sentenced Aguas in the instant case, the court proceeded to sentence Aguas in two separate misdemeanor cases in each of which Aguas entered a guilty plea.

In his appellate reply brief, Aguas acknowledges the Attorney General’s response that the narcotics offender registration requirement was not imposed in the instant case. He argues the trial court erred by imposing that requirement in one of his misdemeanor cases and urges this court to strike the registration requirement imposed in that case.

We do not review contentions of error in cases that are not before us. Aguas’s misdemeanor case is not before this court in this appeal; our record does not show whether Aguas filed a notice of appeal in that case.

II.

Because the Attorney General Did Not File a Notice of Appeal in This Case, We Do Not Address the Contentions of Error Raised in the Appellate Respondent’s Brief.

In the appellate respondent’s brief, the Attorney General states: “In reviewing the record, respondent has found the trial court [orally] imposed an unauthorized sentence by suspending or striking the sentence as to count 3, receiving stolen property.” The Attorney General further states, “The trial court’s error does not require correction of the clerk’s minutes or the abstract of judgment, because both documents list the term as concurrent” to the sentence imposed on count 2. The Attorney General also contends certain clerical errors exist in the court’s minute order and/or in the abstract of judgment with regard to, inter alia, the restitution and parole revocation fines, the court operations fee and the criminal conviction assessment fee.

The Attorney General raises these issues for the first time in the context of Aguas’s appeal and thus did not afford the trial court the opportunity to correct the record in the first instance. Furthermore, the Attorney General did not appeal from the judgment in the instant case; the Attorney General’s effort to raise contentions of error in the appellate respondent’s brief is therefore improper and we do not further address those contentions here.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

GOETHALS, J.