Filed 10/2/17 P. v. Nelson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sutter)
----
| THE PEOPLE,
Plaintiff and Respondent,
v.
AMANDA SUE NELSON,
Defendant and Appellant.
| C081868
(Super. Ct. Nos. CRF111337, CRF120043)
|
Appointed counsel for defendant Amanda Sue Nelson has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. We order the trial court to strike an amended abstract of judgment and prepare a new abstract of judgment, and affirm.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Sutter County Case No. CRF111337
On August 14, 2010, defendant used another person’s access card without permission at Cool Hand Luke’s Restaurant, intending to defraud. On August 15, 2010, defendant used the personal identifying information of another person to obtain goods and services at the Cheesecake Factory, without that person’s consent. She had been convicted of three prior theft offenses, and had served a sentence in a penal institution for each conviction.
Defendant was charged, in Sutter County case No. CRF111337, with petty theft with three prior convictions, for the Cool Hand Luke’s Restaurant offense. For the Cheesecake Factory offense, she was charged with second degree burglary, identity theft, unlawful use of an access card, and second degree burglary. The information also charged defendant with second degree burglary, identity theft, and unlawful use of an access card, allegedly occurring on August 15, 2010, at Planet Beauty. She was also charged with second degree burglary, identity theft, and unlawful use of an access card, allegedly occurring on August 16, 2010, at Nordstrom Rack. Finally, it was alleged that defendant had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) (further undesignated statutory references are to the Penal Code).
Pursuant to a plea agreement, defendant pleaded no contest in Sutter County case No. CRF111337 to petty theft with three prior convictions (§ 666/484g) in connection with Cool Hand Luke’s Restaurant and identity theft (§ 530.5, subd. (a)) in connection with the Cheesecake Factory. Her sentence was stipulated to be three years for each count, to be served concurrently. Execution of the sentence was to be stayed, and she was to be placed on probation. The remaining allegations were to be dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
Sutter County Case No. CRF120043
On December 7, 2011, defendant, who had been released on bail after being charged with a felony, willfully failed to appear in court as ordered. She was charged with failing to appear in a felony case while released on bail. It was further alleged that she had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Defendant entered a plea agreement wherein she pleaded no contest to failing to appear in exchange for a stipulated sentence of eight months, to run consecutive to the three-year term in Sutter County case No. CRF111337. The prior prison term enhancement allegations were dismissed as part of the agreement. Also as part of the agreement, execution of sentence was to be stayed and she was to be placed on probation.
Sentencing and Postsentencing
On July 9, 2012, defendant was sentenced to two concurrent three-year terms in Sutter County case No. CRF111337, and an additional consecutive eight-month term in Sutter County case No. CRF120043. Execution of sentence was suspended and she was placed on probation for three years. She was given time-served on both cases as a condition of probation, and assessed a $240 restitution fine and a $240 probation revocation fine (stayed pending successful completion of probation) in each case.
On December 14, 2012, the probation department notified the court that defendant had violated her probation in both cases by: (1) leaving the state without permission of the probation officer, (2) failing to notify her probation officer that she would be absent from her residence for more than 24 hours, (3) failing to report to her probation officer as directed on two occasions, (4) providing a false address to her probation officer, and (5) failing to keep her probation officer advised of her residence. The trial court revoked defendant’s probation in both cases and issued a bench warrant for her arrest.
On April 25, 2014, defendant admitted violating the terms of her felony probation. On June 2, 2014, the trial court lifted the stays of execution of the sentences in both cases. Pursuant to section 1170, subdivision (h) the trial court ordered the sentence split to comprise of one year in local custody, with credit for 121 days of presentence custody credit, and the remainder of the sentence of two years eight months to be served in mandatory supervision. An additional consecutive eight months were subsequently added to defendant’s mandatory supervision term on an unrelated Butte County matter (Butte County case No. CM03998).
On October 30, 2015, the probation department notified the court that defendant had violated the terms of her mandatory supervision, in that she was not living at her reported address. A subsequently filed petition for revocation of mandatory supervision also added that defendant had failed to report to her probation officer and failed to drug test as required. The trial court revoked mandatory supervision and issued a bench warrant for defendant’s arrest.
On March 7, 2016, defendant admitted violating the terms of her mandatory supervision in both cases. On April 4, 2016, the trial court denied defendant’s motion to be reinstated on mandatory supervision and ordered defendant remanded to serve the remainder of her sentence. Defendant received credit for 475 days already served on mandatory supervision, comprised of 402 days served on mandatory supervision, 37 days of actual custody prior to imposition of sentence, and 36 days of conduct credit.
Defendant appeals.
In reviewing the record, we found an error that requires correction. The trial court’s July 18, 2014, abstract of judgment correctly reflects the trial court’s original sentence of three years eight months, as set forth supra. During the pendency of this appeal, defendant’s appellate counsel erroneously represented, in a Fares letter (People v. Fares (1993) 16 Cal.App.4th 954) to the trial court, that the abstract was inaccurate. As a result, the trial court filed an amended abstract of judgment, as suggested by the Fares letter, which is incorrect.
Defendant was originally sentenced to two concurrent three-year terms in Sutter County case No. CRF111337, and an additional consecutive eight-month term in Sutter County case No. CRF120043, as correctly reflected on the abstract of judgment filed July 18, 2014. Defendant was subsequently resentenced to account for an additional consecutive eight-month sentence, originating out of an unrelated Butte County conviction (Butte County case No. CM03998). One year of defendant’s sentence was originally ordered to be served in custody, with the remainder (three years four months--in light of the added Butte County term) to be served on mandatory supervision. When defendant’s mandatory supervision was revoked and the trial court denied reinstatement, the trial court ordered defendant to serve the remainder of the suspended portion of her sentence in the county jail, with the award of 475 days custody credit toward that remaining term.
Accordingly, the amended abstract of judgment filed on November 14, 2016, is stricken as improvidently prepared. A new abstract of judgment should, however, be prepared and filed reflecting the aggregate four-year four-month sentence (for Sutter County cases No. CRF111337 and No. CRF120043, and Butte County case No. CM03998), with credit for 365 days already served after original execution of sentence, and credit for the 475 days of custody credit, awarded on April 4, 2016.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
Disposition
The judgment is affirmed. The amended abstract of judgment filed on November 14, 2016, is stricken. The trial court is directed to prepare a new abstract of judgment, for the April 4, 2016, sentencing, reflecting the four-year four-month sentence (for Sutter County cases No. CRF111337 and No. CRF120043, and Butte County case No. CM03998) and reflecting the 365 days of credit for time served in county jail after original execution of sentence, along with the 402 days of credit earned while on mandatory supervisions and the additional 73 days (37 days actual time and 36 days conduct credit) of presentence custody credit. The trial court shall forward a certified copy of the abstract of judgment to the Sutter County Sheriff’s Department.
HULL , J.
We concur:
NICHOLSON , Acting P. J.
MURRAY , J.
