Filed 6/27/17 P. v. Findlay CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDY DALE FINDLAY,

Defendant and Appellant.

F073751

(Super. Ct. No. 14CM2583)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig and Thomas DeSantos, Judges.† (Judge Bissig is a retired judge of the Kings Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
STATEMENT OF THE CASE
On September 30, 2014, an information was filed in Kings County Superior Court, charging Andy Dale Findlay (defendant) with burglary of an inhabited dwelling, a serious and violent felony committed while a person other than an accomplice was present (Pen. Code, §§ 459, 667.5, subd. (c), 1192.7, subd. (c); count 1), arson of an inhabited structure, a serious and violent felony (§§ 451, subd. (b), 667.5, subd. (c), 1192.7, subd. (c); count 2); commission of arson for the purpose of terrorizing another (§ 11413, subd. (a); count 3), and stalking (§ 646.9, subd. (a); count 4). On October 1, 2014, defendant pled not guilty to all charges and denied all special allegations. His request to substitute appointed counsel (People v. Marsden (1970) 2 Cal.3d 118) was denied, but he subsequently retained counsel.
On April 27, 2015, counts 3 and 4 of the information were set aside pursuant to section 995. On April 29, 2015, a plea agreement was reached. Defendant waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. The court advised him of the consequences of pleading guilty, including that due to the nature of the charges, there was a presumption against probation so that defendant likely would not be granted probation, and that he faced a maximum sentence of nine years four months in prison. Counsel stipulated there was a factual basis for the plea set out in the preliminary hearing transcript.
Defendant pled guilty to count 1 and admitted a person other than an accomplice was present in the residence during the burglary. He also pled guilty to count 2. Defense counsel concurred in defendant’s entry of the guilty pleas and admission, and the court found the plea and admission to have been knowingly, intelligently, and voluntarily given.
On June 1, 2015, the trial court denied probation, and sentenced defendant to the middle term of five years on count 2, plus a consecutive term of 16 months (one-third of the middle term) on count 1, for a total term of six years four months in prison. The court awarded 277 actual days plus 41 conduct credits, for a total of 318 days of credit. It imposed a restitution fine, pursuant to section 1202.4, subdivision (b), in the amount of $1,800, and a fine in the same amount pursuant to section 1202.45, which it suspended unless parole was revoked. It also imposed a court operations assessment, pursuant to section 1465.8, in the amount of $80, and a court facilities funding fee, pursuant to Government Code section 70373, in the amount of $60; and it ordered defendant to register, pursuant to section 457.1, upon his release from custody. In addition, the court ordered defendant to pay victim restitution in the amount of $3,150.59 plus interest in the amount of 10 percent per year from the date of sentencing.
Defendant submitted a notice of appeal that was untimely. After he filed a petition for writ of habeas corpus in this court, alleging deficient performance by trial counsel for failure to file a timely notice of appeal, we directed the clerk of the superior court to file the notice of appeal and deem it to be timely filed.
FACTS
On August 24, 2014, Officer Obarr of the Lemoore Police Department was dispatched to a residence on Bodega Avenue in Lemoore in response to a call of a fire in the house. At the scene, Obarr interviewed Michelle Farris, the victim. Farris said she had been in a relationship with defendant for about four years, and they had broken up about two months earlier. Farris related that as she drove home the morning of the fire, she saw defendant’s truck parked near the group of mail boxes for the neighborhood. Defendant was not in the truck, but she saw him walking near her residence. He turned his head in what she believed was an attempt to keep her from seeing his face. As she got out of her vehicle and approached her front door, she heard the fire alarm going off. When she walked in, she smelled smoke and saw a small fire under the entertainment center against the wall. She began screaming for her 18-year-old son to wake up, and the two of them were able to put out the fire. She then went outside to look for defendant’s vehicle, but it was gone.
During the interview, Farris received three telephone calls and a number of text messages from defendant. Initially, he denied even being in Lemoore. In the third call, however, he admitted he had been in the residence since about 1:00 that morning and had set the fire. When Farris asked how he could live with himself, having set the fire knowing her son was asleep in the house, defendant said he had planned on going back and putting the fire out, but he saw her coming and knew she could take care of it.
A fire investigator determined the fire occurred under the bottom shelf of the entertainment center in the living room. The irregular burn pattern on the carpet indicated an ignitable liquid was used and led to the conclusion the fire was the result of arson.
APPELLATE COURT REVIEW
Defendant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel stating that defendant was advised he could file his own brief with this court. By letter dated September 16, 2016, we invited defendant to submit additional briefing.
Defendant replied in a letter and raised several claims. We address each in turn, as well as the issue he raised in his notice of appeal.
(1) Defendant says he received a letter stating his sentence should only be five years eight months. No such letter is contained in the record on appeal; however, some confusion may have arisen because the abstract of judgment incorrectly states which charge received which sentence. The abstract should reflect defendant was sentenced to the middle term of five years on count 2 (arson of an inhabited structure or property; § 451, subd. (b)), plus a consecutive term of one year four months on count 1 (first degree burglary; § 459). The six year four month sentence pronounced by the trial court is correct, since, at the time of defendant’s crimes, arson of an inhabited structure or inhabited property carried a sentence of three, five, or eight years in prison (§ 451, subd. (b)), while first degree burglary carried a sentence of two, four, or six years in prison (§ 461, subd. (a)). We will order the abstract of judgment corrected.
(2) Defendant says he is hearing impaired; was offered a hearing device during his first court date but not thereafter; and “would just go with” what his attorney told him to do without really hearing or understanding what was being done. The record does reflect defendant used a hearing device at his initial arraignment on September 2, 2014, but does not show whether he did or did not use such a device thereafter. Significantly, nothing in the record suggests defendant brought to his attorney’s or the court’s attention — at any point — any trouble he may have had hearing. In fact, defendant told the court, during the change of plea hearing, that he had no questions about what was going on in court and he understood everything the trial court had said regarding his rights, the charges, and the consequences of pleading guilty. Under the circumstances, the record does not support any claim for relief.
(3) Defendant expresses confusion over the fact he is being charged interest on “restitution fees.” Section 1202.4, subdivision (f)(3)(G) requires a trial court to award restitution to a victim — here, the owner of the residence at which defendant committed the arson — in an amount based on the amount of the loss claimed plus 10 percent annual interest. Thus, the trial court here correctly awarded restitution in the amount of $3,150.59 to the owner of the residence plus 10 percent annual interest from the date of sentencing. That restitution award, which is accruing interest, is separate from the restitution fine of $1,800 imposed pursuant to section 1202.4, subdivision (b).
(4) In his notice of appeal, defendant asserts his understanding that he would receive half-time credits for his time spent in custody from the date of arrest through the date of sentencing. The record on appeal does not contain any basis for any such understanding, except possibly another clerical error in the abstract of judgment. The probation officer’s report stated defendant was only entitled to 15 percent conduct credits, pursuant to section 2933.1, as his offenses constituted violent felonies within the meaning of section 667.5, subdivision (c). This is a correct statement (see §§ 667.5, subd. (c)(10), (21), 2933.1, subd. (a)), and the trial court awarded credits accordingly. At the sentencing hearing, defense counsel represented that he had discussed time credits with defendant and defendant understood. Defendant stated that was correct. The abstract of judgment, however, shows the amount of credits actually awarded, but incorrectly reflects they were awarded pursuant to section 4019 instead of section 2933.1. We will order the abstract of judgment corrected.
After independent review of the record, we conclude there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed. The trial court is directed to cause the abstract of judgment to be corrected to show (a) in item 1, that the five-year sentence was imposed on count 2, arson of an inhabited structure or property (Pen. Code, § 451, subd. (b)), while the one year four month sentence was imposed on count 1, burglary in the first degree (Pen. Code, § 459), with the column titled “1/3 CONSECUTIVE” but not the column titled “CONSECUTIVE FULL TERM” checked; and (b) in item 16, that local conduct credits were awarded pursuant to Penal Code section 2933.1, not Penal Code section 4019. The trial court shall cause certified copies of the amended abstract of judgment to be forwarded to the appropriate authorities.