Filed 5/29/18 P. v. Golston CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
JORDAN LOUIS GOLSTON,
Defendant and Appellant.

A153586

(Sonoma County
Super. Ct. No. SCR699365)


Jordan Louis Golston (appellant) appeals from a judgment entered after he pleaded no contest to first degree burglary (Pen. Code, § 459 ), and the trial court sentenced him to six years in prison. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 7, 2017, a felony complaint was filed charging appellant with first degree burglary (§ 459). The complaint alleged the charged offense was both a serious felony and violent felony (§§ 1192.7, subd. (c), 667.5, subd. (c)). It further alleged the burglary was a felony within the meaning of section 462, subdivision (a), precluding probation except in unusual cases, and that appellant was subject to a one-year sentence enhancement due to a prior felony conviction (§ 667.5, subd. (b)).
According to the probation department’s felony presentence report, the following events occurred on April 6, 2017: “[A]t approximately 12:46 p.m., deputies were dispatched to a residence [in] . . . Santa Rosa, for a burglary report. Deputies contacted [the victim], who stated he locked and left his residence at 12:00 p.m. At 12:31 p.m., his wife called him, stating a truck was parked in their driveway and she waited down the street. [The victim] called law enforcement and went to his residence. Upon exiting his vehicle, he observed a male who identified himself as “Jason Holder,” but was ultimately identified as defendant Jordan Golston, walking toward him from the backyard. Golston said he worked for Lind Construction Company and was there to remodel the kitchen. [The victim] attempted to detain Golston, but was unsuccessful. He took photographs of Golston’s face and license plate and provided them to law enforcement; deputies were able to identify Golston based on booking photographs. When Golston accelerated out of the driveway, the truck tire caught the tip of [the victim’s] boot, but did not run over his foot. [The victim’s] wife provided a consistent account.
“Deputies observed the residence had been ransacked with kitchen drawers open, clothes thrown about the house, and the master bedroom closet had been disturbed. Pry marks were found on the garage door and sliding glass door; it was evident the sliding glass door had been pried open. The following items were stolen from the residence: an engagement ring ($17,000), a wedding band ($1,000), an iPad ($800), a bracelet ($200), three necklaces ($300, $150, and $150), and a platinum ring ($2,000). All jewelry had been stolen from the bedroom closet and the iPad was stolen from the kitchen.
“On 04/07/17, [the victim] told deputies he found a pillowcase in the backyard. A deputy retrieved the pillowcase and found a metal pry tool that matched the pry marks on the residence. The pillowcase contained the stolen jewelry, which was returned to [the victim].”
The probation department recommended that the trial court place appellant on three years’ probation, with a seven-year execution-suspended sentence. As conditions of probation, the probation department recommended that appellant serve a twelve-month county jail term and complete a residential treatment program.
On July 28, 2017, appellant pleaded no contest to one count of first degree burglary (§ 459) and admitted the one prior prison term enhancement (§ 667.5, subd. (b)). The plea form stated the custody term was “TBD [to be determined]” at sentencing, and had a notation that appellant “pleads open to court” and is “trying to get into [a] residential program in [Santa Cruz] county.” The court indicated at the plea hearing that it would “be striking or staying the one-year [prison] prior, which does give you a six-year maximum commitment.” Appellant responded, “Okay.”
On September 28, 2017, after reviewing the probation report, the trial court stated, “I have indicated to your counsel that I am prepared to follow the recommendation of probation, which is—you must have really made a good impression at your interview, really, but I’m willing to follow this as long as you are in a relatively lengthy program.” The court continued the hearing to October 12, 2017.
At a continued hearing, the parties discussed whether appellant could post bail and be released from custody so that he could secure funding to enter a residential treatment program. The trial court noted, “So he’s got . . . a 30,000 warrant out of San Joqauin. Santa Cruz, a $10,000 . . . felony warrant for failure to appear, and a 10,000 misdemeanor warrant for possession of controlled substance, with a hold only out of San Joaquin.” The prosecutor said she had a “strenuous objection” to the court releasing him, due to the fact that appellant “continues to offend while on probation” and is a “danger to himself” and “to the community” and “to the property of others.” The court stated it was not going to release appellant, stating, “You have ten prior felony convictions. [The prosecutor] wants to respond in writing to your counsel’s statement . . . in support of probation. You’re in custody for a reason, and I’m not going to just give you a pass to get out so you can secure funding . . . . Your record is too dismal for that.” The court told appellant, “you need to come back in here with a treatment program that probation approves. Some kind of licensed treatment program. Otherwise, there’s zero chance of getting that probation recommendation granted.” “And . . . [the prosecutor] will be filing reasons why I shouldn’t follow that recommendation.”
At the continued sentencing hearing, the trial court stated, “I just want to be clear for the record, this was a totally open plea. . .[S]o I have all options open to me. . . . [A]lthough I might have indicated what I’m planning to do, I want to listen to both of you. And just so the record is abundantly clear, this is an open plea with no promises or guarantees.” The court said it would not allow appellant to withdraw his plea. Defense counsel said it was “not a totally open plea” in that the plea agreement indicated that appellant was trying to get into a residential program and that the court would be striking the prison prior. The court agreed it would strike the prison prior in the event it imposed a prison sentence.
Defense counsel informed the trial court that appellant had been accepted to Crossing the Jordan—a 12 to 18-month program—and to Henry Ohlhoff house. He continued, “It is my understanding that there may be a hold in San Joaquin County that is in place. If the Court grants probation, I was intending to not do anything at this point. [Appellant] is going to make all attempts to bail out on that, and we were going to deal with it going forward.” Counsel argued this was an unusual case because there was no violence despite an encounter with the victim. He noted appellant had never been arrested, charged with, or convicted of, any crime of violence or aggression, and that most of his charges related to “drug or property-related offenses.” He argued that appellant took responsibility early in the case, has dependents who count on him, has taken steps to secure treatment, and is motivated to comply with probation.
The prosecutor argued that probation relied on the incorrect section in recommending a grant of probation, i.e., it relied on section 4.414, which is used for someone who is presumptively eligible for probation, instead of section 4.413, which is used to evaluate whether unusual circumstances exist. Noting that unusual circumstances exist only where the case is “substantially less serious than the circumstances typically present in other cases,” the prosecutor argued no such circumstances existed in appellant’s case. She argued this is “a very usual case with [the victim] present,” and is “unusual in the negative sense that the defendant almost ran over the foot of the victim while attempting to flee the scene.” She argued that appellant was criminally sophisticated in that he had a construction vest on and a story in place—that he was doing improvements to the home. The female victim had children with her in the car, and the incident had significantly impacted her. Appellant’s criminal history, which includes commercial burglaries and fraudulent checks, had increased in seriousness and criminality. In response to defense counsel’s argument that it was an unusual case because of the lack of violence, the prosecutor stated, “if [appellant] had been violent with these victims, it would be a 211 or it would be a home invasion robbery. It would be a completely different circumstance. What we’re looking at is a 459 . . . Just because he didn’t commit an additional crime doesn’t make this an unusual circumstance.”
The trial court stated, “The reason . . . that makes that a serious and violent felony is because . . . of the possibility of things going so far south and making it a home [invasion] robbery or some assault with intent because of the danger. It increases the danger substantially. [¶] I understand that probation has recommended probation. And we can remember . . . in August there was express surprise by the People. I was surprised, giving you the chance to submit all the information. [¶] I’m very impressed that [appellant] has gotten into Crossing the Jordan.” However, the court said to appellant, “you have ten prior felony convictions. You have a case that’s pending in San Joaquin where you codefendant in that case is the mother of your child and where she is alleged to be a co-participant in something that happened in Santa Cruz where you were convicted of two other felonies.” The court continued, “I do not believe under any circumstance that I can find that this is an unusual case based on the circumstances of the crime” and appellant’s record of increasing criminality. Based on appellant’s criminal record and the fact that the victims were present, the court imposed the aggravated term of six years. The court struck the prison prior and awarded appellant a total of 259 days presentence credits, comprised of 226 days of actual custody credits (§ 2900.5) and 33 days of conduct credit (§ 2933.1). The court also directed appellant to pay $612.30 in victim restitution and imposed the following fines and fees: a $300 restitution fine (§ 1202.4); a $300 parole revocation fine (§ 1202.45), suspended unless parole is revoked; a $40 court operations assessment (§ 1465.8); and a $30 criminal conviction assessment (Gov. Code, § 70373).
On January 31, 2018, appellant filed a timely notice of appeal, indicating that the appeal was (1) based on the sentence or other matters occurring after the plea, and (2) challenging the validity of the plea. In his request for a certificate of probable cause, appellant stated he pleaded no contest with the understanding that he would be placed on probation and receive drug addiction treatment after serving a one-year jail sentence. He further stated that his understanding of the sentence was noted on the plea waiver form he signed, reflected in the record, included in probation’s report, and explained to him by his appointed counsel. Appellant also noted the court did not allow him to withdraw his plea. The trial court granted appellant a certificate of probable cause.
DISCUSSION
Appellant’s counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to the appellant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with his responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.

 

_________________________
McGuiness, Acting P.J.*


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.














A153586