Filed 9/25/18 P. v. Garcia CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. FLORENTINO A. GARCIA, Defendant and Appellant. |
A151104
(City & County of San Francisco Super. Ct. No. SCN 226910)
|
Defendant Florentino A. Garcia appeals from a judgment, following a jury trial and conviction of one count of felony stalking (Pen. Code,[1] § (646.9, subd. (a)) and three misdemeanor counts of disobeying a domestic relations court order (§ 273.6, subd. (a)). The trial court sentenced defendant to the upper term of three years in state prison for his stalking conviction and imposed three one-year concurrent terms for his misdemeanor convictions. The trial court also issued a 10-year protective order. Defendant was ordered to pay various fines and assessments. Defendant’s appellate counsel raises no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to the defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to file a supplemental brief, but has not done so. Upon independent review of the record, we have determined the matter must be remanded for correction of the abstract of judgment and sentencing minute order, but otherwise affirm.
BACKGROUND
On December 15, 2016, the San Francisco District Attorney’s Office filed a felony complaint against defendant, a French citizen, alleging five counts (two felonies and three misdemeanors). A preliminary hearing was held on December 29, at which defendant was represented by counsel and was provided with a French interpreter. Defendant was held to answer and the district attorney filed a five-count amended information, charging defendant with felony stalking, misdemeanor telephonic harassment, and three counts of misdemeanor violation of a domestic relations order.
Trial commenced on March 21, 2017. On March 23, the prosecution moved for dismissal of the telephonic harassment count, which was granted. The prosecution called seven witnesses, including victim Taylor Allen and her father.
Ms. Allen testified she first met defendant in September 2012 when she worked at a restaurant in Nice, France, called Paddy’s Pub. Ms. Allen, who had been living in France for nearly three years, was fluent in French. She served defendant a drink and they had a friendly conversation in French. Defendant began going to Paddy’s Pub on a weekly basis. Ms. Allen would try get another waitress to serve defendant because he made her feel “uncomfortable.”
In 2013, Ms. Allen began working at Bistro d’Antoine, which was located around the corner from Paddy’s Pub. Defendant began frequenting this restaurant to visit Ms. Allen. Four months later, Ms. Allen began working at Ma Nolan’s. Defendant would make bi-weekly visits to Ms. Allen at this restaurant.
Defendant gave Ms. Allen flowers and a necklace for her birthday, which she tried unsuccessfully to give back to defendant. Ms. Allen did not socialize, exchange phone calls, text messages, or any other electronic communications with defendant.
In the summer of 2014, Ms. Allen moved to Mexico to teach a foreign language course that she eventually established as her own business. Defendant followed her to Mexico and began showing up at Ms. Allen’s office.
In January 2015, Ms. Allen obtained a restraining order against defendant, which he violated. Eventually, defendant was arrested by Mexican authorities.
In the summer of 2015, Ms. Allen and a male friend confronted defendant, telling him to leave her alone. Undeterred, defendant continued to visit Ms. Allen every couple of months. One time Ms. Allen sprayed defendant in the face with mace and he fled.
In addition to Ms. Allen’s in-person encounters with defendant, he also bombarded her with unsolicited emails, text messages, and social media messages, in which he professed his love for her. In these messages, defendant would mention the times and locations that he had watched Ms. Allen in France and in Mexico. Although all of defendant’s messages had been in French, in January 2016, he sent her one in English, stating “My Beloved Taylor, I want to be with you forever. Don’t leave me alone, among my broken dreams. It would mean death. With all my love, Florent.”
In 2016, Ms. Allen moved back to San Francisco. Defendant followed her to San Francisco and began sending Ms. Allen messages about being in California and seeing her there. Ms. Allen obtained a civil harassment restraining order against defendant, which he violated.
DISCUSSION
Defendant was ably represented by counsel and assisted by a qualified French interpreter at all times. The jury’s verdict is supported by substantial evidence. The trial court did not abuse it discretion in denying probation and sentencing defendant to the upper term of three years given defendant’s unrelenting course of conduct, in which he stalked the victim over the course of four years and in three different countries. The court properly issued a 10-year protective order.
However, the abstract of judgment and the sentencing minute order do not accurately reflect the sentence pronounced by the trial court. The court used the wrong abstract of judgment form. The court used abstract of judgment Judicial Council Form CR-290-1. This form has space to list only one conviction and is not for use with a judgment that involves multiple convictions. As a result, the abstract of judgment lists only defendant’s felony stalking conviction and fails to include his three misdemeanor convictions for violating a court order. The abstract of judgment also failed to reference the 10-year criminal protective order. Instead, the court should have used abstract of judgment Judicial Council Form CR-290, which is for determinate sentences involving multiple convictions and has space to list more than one conviction. Judicial Council Form CR-290 also provides space for “Other orders[.]” Finally, the abstract of judgment and the sentencing minute order must be modified to reflect the amount of fines and assessments actually imposed by the trial court at the sentencing hearing.
“Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore order the trial court to correct the abstract of judgment as set forth below.
DISPOSITION
The April 19, 2017 sentencing minute order and abstract of judgment are modified to include the following fines and assessments: 1) a restitution fine of $750, representing $300 for the felony, and $150 on each misdemeanor (§ 1202.4, subd. (b)(1)); 2) a stayed parole revocation fine in the same amount (§ 1202.4); 3) a court operations assessment of $40 per conviction, for a total of $160 (§ 1465.8); 4) an Immediate Critical Needs Assessment of $30 per conviction, for a total of $120 (Gov. Code, § 70373, subd. (a)); 5) a booking fee of $135 (Gov. Code, § 29550.2); and 6) a presentence report cost of $150. The abstract of judgment is further modified to include defendants three misdemeanor convictions (counts 2, 3, and 4) for violation of section 273.6, subdivision (a) and the sentence for these convictions as being one year each to run concurrently with defendant’s three-year sentence for his section 646.9 felony conviction (count 1). Finally, the abstract of judgment is modified to include the 10-year criminal protective order dated April 19, 2017, which prohibits defendant from being within 150 yards of Ms. Allen or her residence; prohibits defendant from having any personal, electronic, telephonic, or written contact with Ms. Allen; and prohibits defendant from contacting Ms. Allen through a third party. (§ 646.9, subd. (k)(1).) The superior court clerk is directed to: 1) prepare an amended abstract of judgment on Judicial Council Form CR-290 that memorializes these modifications; and 2) forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
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REARDON, J.
We concur:
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STREETER, P. J.
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SMITH, J.*
*Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A151104 People v. Garcia
[1] All further undesignated statutory references are to the Penal Code.