Filed 9/28/18 P. v. Rostami CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed and remanded with directions.

Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.

This is a Wende[1] appeal from a judgment of conviction after a jury trial.

The Prior Case (No. SCN326544)

In April 2014 Hamid Rostami pleaded guilty to elder abuse (Pen. Code,[2] § 368, subd. (b)(1), count 1) and admitted that in October 2013 he unlawfully caused harm to Dolores H., a person that he knew to be an elder and under circumstances likely to cause great bodily injury. After the trial court denied Rostami's motion to withdraw his plea, it placed him on three years' formal probation and ordered him to serve 120 days in jail.

The Instant Case (No. SCN368787)

Eighty-seven year old Amir lived with his wife Fatemah and Rostami, their son. On November 11, 2016, Oceanside Police Officer Richard Irwin responded to a 911 call regarding a battery and met with Amir and Fatemah. Amir told Officer Irwin that he had gotten into an argument with Rostami and that Rostami had grabbed him and thrown him to the floor. When Amir told Rostami that he was going to call 911, Rostami took the cordless telephone and left. Amir went to the home of his neighbor, Dolores, to call the police. Fatemah told Officer Irwin that Amir and Rostami had argued, Rostami then grabbed Amir, threw him down, and took the telephone. Officer Irwin's report, however, stated only that Amir had been pushed to the floor. Although Amir appeared flustered, Officer Irwin saw no visible injuries on him.

The district attorney filed a complaint based on this incident. Thereafter, the court summarily revoked Rostami's probation for his earlier conviction involving Dolores. After the preliminary hearing on the new charges, the court concluded that Rostami had violated the terms of his probation and formally revoked probation. An information was filed alleging that on November 11, 2016, Rostami attempted to prevent and dissuade a victim and witness from making a report to a peace officer (§ 136.1, subd. (b)(1), count 1) and unlawfully caused Amir, an elder in his care and custody, to suffer unjustifiable physical pain and mental suffering under circumstances and conditions likely to produce great bodily harm (§ 368, subd. (c), count 2). The matter proceeded to trial.

At trial, Amir admitted that he and Rostami had argued and that Amir called the police from Dolores's home. However, he denied the claims that Rostami had pushed him to the floor and taken the cordless telephone. Fatemah testified that she did not see Rostami hit or push Amir. She also denied speaking to the police after the alleged incident. A police detective testified that it is common for people to change their stories in elder abuse and domestic violence situations and minimize what happened after things settle down.

Dolores confirmed that Amir used her telephone, and she testified that he appeared shaky and frightened and "seemed terrorized." Amir told Dolores that Rostami had grabbed him by the throat, pushed him against the wall and grabbed the telephone.

Dolores also testified about the October 2013 incident involving Rostami. Dolores had a handyman at her home doing work. When she went outside to pay the handyman, Rostami was talking to him. Dolores told Rostami "excuse me" and stated that she wanted to finish her business with the handyman. Rostami then pushed Dolores's shoulders with both hands, causing her to become airborne and land in the street, where she hit her head and mouth on the ground. She denied pushing Rostami first. The handyman testified that Rostami aggressively pushed Dolores for seemingly no reason when Dolores came to talk to him. Rostami ultimately pleaded guilty to elder abuse and admitted that he unlawfully caused harm to a woman that he knew to be an elder and under circumstances likely to cause great bodily injury.

Rostami testified in his own defense. He stated that he got into a "heated discussion" with Amir, that they shouted at each other, and Amir asked him to leave. He left when Amir threatened to call the police because he did not want to jeopardize his probation. He denied shoving Amir or taking the telephone.

As to the prior incident involving Dolores, Rostami explained that Dolores interfered in a conversation he was having with the handyman about repair work at his parents' home. Rostami claimed that Dolores approached when he was speaking to the handyman, she shoved his whole body, told him to "get the hell out of here," and said she wanted to talk to the handyman. When Dolores pushed him again, she fell. Rostami explained that he pleaded guilty because he was stressed and not getting good legal advice. He later tried to withdraw his guilty plea, but the court denied his motion.

A jury found Rostami guilty of both counts. Rostami moved for a new trial on the grounds that Amir had recanted his reports to the police. Amir testified at the hearing on the motion that he had lied to the police when he told them that Rostami had pushed him. The court denied the new trial motion, stating it did not find credible Amir's testimony that he had lied to the police.

For the matter involving Amir (case No. SCN368787), the court denied probation and imposed the upper term of three years on count 1 and six months, concurrent, on count 2. For the matter involving Dolores (case No. SCN326544), the court imposed the middle term of three years, concurrent with case No. SCN368787.

We requested and received supplemental briefs to address whether the trial court erred when imposing the sentence in case No. SCN368787, in calculating conduct credits in case Nos. SCN368787 and SCN326544, and whether the abstracts of judgment and sentencing minutes require correction.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal, but asked this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Counsel has identified the following issues that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744): whether (1) the evidence supported a finding that Rostami violated probation in case No. SCN326544; (2) the evidence supported Rostami's convictions in case No. SCN368787; (3) the court erred in admitting prior incidents of elder abuse; (4) the court erred in denying Rostami's new trial motion; and (5) the court erred in imposing the upper term. We offered Rostami the opportunity to file a brief on his own behalf, and he has not responded.

Our review of the record discloses no reasonably arguable appellate issues. Section 1203.2, subdivision (a) authorizes a court to revoke probation " 'if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation.' " (People v. Rodriguez (1990) 51 Cal.3d 437, 440.) The standard of proof in a probation revocation proceeding is a preponderance of the evidence (id. at p. 441), and we review the trial court's decision for abuse of discretion (id at p. 442). There are no arguable issues regarding the revocation of Rostami's probation.

Reversal of a conviction for insufficient evidence is only required if under no hypothesis whatever is there substantial evidence to support the conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.) The testimony of a single witness, if believed by the jury, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Although Amir and Fatemah denied their prior statements to police regarding the incident, not only was the jury entitled to disbelieve those denials, but Dolores's testimony and that of Officer Irwin, without more, support the convictions. There are no arguable issues regarding the sufficiency of the evidence.

Evidence Code section 1109 allows admission of prior incidents of elder abuse when the defendant is currently charged with a like offense "if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a)(2) & (3).) The record does not support an argument that the trial court erred in admitting prior incidents of elder abuse. Nor does the record support an argument that the trial court abused its discretion in denying Rostami's new trial motion. (People v. Delgado (1993) 5 Cal.4th 312, 328 [denial of new trial motion is reviewed for abuse of discretion].)

A sentencing court has broad discretion to impose the lower, middle, or upper terms of imprisonment, and to weigh various aggravating and mitigating factors. (People v. Black (2007) 41 Cal.4th 799, 813, 822; § 1170, subd. (b).) An upper-term sentence may be based upon "any aggravating circumstance that the court deems significant [and] 'reasonably related to the decision being made.' " (People v. Sandoval (2007) 41 Cal.4th 825, 848.) For the matter involving Amir (case No. SCN368787), the court denied probation and imposed the upper term of three years on count 1 (§ 136.1, subd. (b)(1)). The sentencing triad on a conviction under section 136.1 is 16 months, or two or three years. (§§ 18, 136.1, subd. (b)(1).) The trial court found one mitigating circumstance, four aggravating circumstances and noted that Rostami had "no ability to process what [he had] done to [his] parents." The record does not support an argument that the trial court abused its discretion when it imposed the upper term.

The People argue that the trial court failed to impose a sentence on the misdemeanor elder abuse count in case No. SCN368787 (count 2). The court, however, imposed a six-month concurrent sentence at the end of the hearing. (§§ 19, 368, subd. (c).) Although the trial court failed to specify the case number for the sentence, case No. SCN326544 did not have a second count; thus, the court was necessarily referring to count 2 in case No. SCN368787.

Regarding the custody credits in case No. SCN368787, the People argue that the trial court erroneously awarded an additional day of actual custody credit. Rostami's counsel disagrees.

The failure to properly calculate custody and conduct credits can be corrected at any time. (People v. Chilelli (2014) 225 Cal.App.4th 581, 591.) "A defendant is entitled to actual custody credit for 'all days of custody' in county jail and residential treatment facilities, including partial days. [Citations.] Calculation of custody credit begins on the day of arrest and continues through the day of sentencing." (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) According to the probation report, in case No. SCN368787 Rostami was arrested on January 30, 2017. He was sentenced on September 15, 2017. There is no indication that he was released from custody at any point. Thus, he should have been credited for 228 days of actual custody. The trial court erroneously awarded him 229 days of actual custody credit. Accordingly, the abstract of judgment and sentencing minutes need to be corrected and to reflect total credits of 456 days.

In case No. SCN326544, the probation report shows that Rostami had 289 days of actual custody (five days for the first confinement, 56 days for the second confinement, and 228 days for the third confinement at time of sentencing). Under section 4019 he was entitled to custody credits of 288 days, for a total of 577 credits. Thus, the court properly calculated the custody credits and the sentencing minutes are correct. It appears, however, that the trial court misspoke at the sentencing hearing when it stated that Rostami had "280 days actual served" instead of 289 days.

The People note, and counsel for Rostami agrees, that the sentencing minutes in case No. SCN326544 incorrectly list the charge as a violation of section 136.1, subdivision (b)(1) in the body of the minutes, but correctly list the charge as a violation of section 368, subdivision (b)(1) in the heading. The sentencing minutes need to be corrected.

Finally, counsel for Rostami notes, and we agree, that a single abstract of judgment should have been prepared for both cases using Judicial Council Form CR-290. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court has the power to correct clerical errors].) Here, the trial court used Judicial Council Forms CR-290.1. Form CR-290.1 has space to list only one conviction and is not for use with a judgment that involves multiple convictions. Instead, the court should have used abstract of judgment form CR-290 which is for determinate sentences involving multiple convictions and has space to list more than one conviction.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant. Competent counsel has represented Rostami on this appeal.

DISPOSITION

The judgment is affirmed. The case is remanded to the trial court with directions to (1) cause to be prepared an amended determinate term abstract of judgment on Judicial Council Form CR–290 for both cases that reflects 228 days of actual custody credit and total credits of 456 days in case No. SCN368787, and (2) correct the body of the sentencing

minutes in case No. SCN326544 to list the charge as a violation of section 368, subdivision (b)(1). A certified copy of the amended abstract is to be forwarded to the Department of Corrections and Rehabilitation.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.