Fear Not Law Articles: P. v. Horner

P. v. Horner

Filed 1/19/07 P. v. Horner CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

PATRICK BERNARD HORNER,

Defendant and Appellant.

G036907

(Super. Ct. No. 05WF1445)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Reversed and remanded with directions.

Carl M. Hancock, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Rhonda L. Cartwright-Ladendorf, Deputy Attorney General, for Plaintiff and Respondent.

* * *

Defendant Patrick Bernard Horner pleaded guilty to a nonexistent count. An information charged him with one count each of felony elder abuse by a caretaker (Pen. Code, § 368, subd. (b)(1))[1] and misdemeanor resisting an officer (§ 148, subd. (a)(1)). The court severed the counts before trial, consolidating the resisting an officer count with a similar count charged in a separate matter. (§ 954.) The minutes show count 2 (resisting an officer) was â€

Description	Defendant pleaded guilty to a nonexistent count. An information charged him with one count each of felony elder abuse by a caretaker (Pen. Code, S 368, subd. (b)(1)) and misdemeanor resisting an officer (S 148, subd. (a)(1)). The court severed the counts before trial, consolidating the resisting an officer count with a similar count charged in a separate matter. (S 954.) The minutes show count 2 (resisting an officer) was "deleted" from the elder abuse case. The parties later entered into a plea agreement. As part of the plea agreement, the felony elder abuse count was dismissed and defendant pleaded guilty to the severed/consolidated/deleted count. Defendant contends this is a "readily apparent" error. The Attorney General concurs. It submitted a one paragraph letter brief, stating it "has no objection to this Court ordering this misdemeanor conviction be stricken."
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