Filed 10/18/18 P. v. Aguas CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO PATINO AGUAS, JR.,
Defendant and Appellant.
|
G055295
(Super. Ct. No. 16NF2842)
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; CHANGE IN JUDGMENT |
It is ordered that the opinion filed herein on September 24, 2018, be modified as follows:
1. On page 1, in the editorial paragraph, in the second sentence, after the word “Affirmed” add “and remanded with directions” so the sentence reads:
Affirmed and remanded with directions.
2. On page 2, in the second full paragraph beginning “We affirm,” delete the last sentence, beginning “We also decline” and replace that sentence with the following sentences:
In the appellate respondent’s brief, the Attorney General requests that this court correct certain errors in the record involving Aguas’s sentencing. We address these contentions in section II of the Discussion in this Opinion.
3. On page 4, delete the entire heading under “II,” beginning “Because the Attorney General Did Not” and replace with the following heading:
4. On page 4, delete the fourth paragraph in its entirety, beginning “The Attorney General raises these issues,” and add the following paragraphs:
Our record shows no party brought the Attorney General’s asserted sentencing errors to the trial court’s attention, thereby depriving the trial court of the opportunity to correct them in the first instance. The Attorney General’s appellate respondent’s brief fails to cite any legal authority showing this court may properly grant the relief sought by the Attorney General, as opposed to the trial court in the first instance.
With regard to the Attorney General’s argument that the trial court erred in its oral pronouncement of sentence by stating that it would strike or suspend sentence on count 3, the court’s minutes and the abstract of judgment both correctly state that sentence was imposed on count 3 to run concurrently with the sentence imposed on count 2. In his appellate reply brief, Aguas states that the court’s minutes and the abstract of judgment correctly state he was sentenced to a prison term on count 3 to run concurrently to the prison term imposed on count 2, and that this court need take no further action. The Attorney General has provided no authority supporting his request that we order the trial court to impose a concurrent sentence under these circumstances. The trial court’s record, coupled with this opinion, makes clear that the trial court imposed a concurrent sentence on count 3.
With regard to the Attorney General’s request that we correct the clerical errors contained in the court’s minutes and the abstract of judgment with regard to the imposition of certain fines and fees, in his appellate reply brief, Aguas states he does not object to the Attorney General’s requested relief.
Our record shows the trial court intended to impose the required fines and fees on Aguas, and that the references in the court’s minutes and the abstract of judgment stating fines and fees had been waived by the court were made in error. As first pointed out by the Attorney General in the petition for rehearing filed in this case, this court has authority to order the trial court to correct errors first raised by the Attorney General in an appellate respondent’s brief. (See People v. Mitchell (2001) 26 Cal.4th 181, 184-185, 187 [appellate courts may order correction of clerical errors in abstract of judgment first raised by Attorney General].) As our record shows the trial court intended to impose these fines and fees in the amounts required by statute and not to waive them, we direct the court to correct its minutes and the abstract of judgment to show the court imposed $300 for restitution and parole revocation fines under sections 1202.4 and 1202.45, $80 in court operation fees under section 1465.8, and $60 in criminal conviction assessments under Government Code section 70373.
5. On page 5, under the heading “DISPOSITION,” add the following sentences after the sentence “The judgment is affirmed”:
We remand with directions to the trial court to correct the minutes and the abstract of judgment to show the court imposed, and did not waive, $300 in restitution and parole revocation fines pursuant to sections 1202.4 and 1202.45, an $80 fee for court operations under section 1465.8, and $60 in criminal assessment fees under Government Code section 70373. We direct the trial court to thereafter prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
This modification effects a change in the judgment, thereby triggering the time for finality specified under rule 8.264(c)(2) of the California Rules of Court to begin to run anew as of this date.
The petition for rehearing is DENIED.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
GOETHALS, J.
Filed 9/24/18 P. v. Aguas CA4/3 (unmodified opinion)
NOT TO BE PUBLISHED IN 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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERTO PATINO AGUAS, JR.,
Defendant and Appellant.
|
G055295
(Super. Ct. No. 16NF2842)
O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Scott A. Steiner, Judge. Affirmed.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Introduction
Roberto Patino Aguas, Jr. (Aguas) appeals from the judgment entered after a jury found him guilty of receiving a stolen vehicle with a prior felony conviction and receiving stolen property. He contends that, at the sentencing hearing, the trial court erred by imposing a narcotics offender registration requirement.
We affirm. At the sentencing hearing, after the trial court imposed sentence in the instant case, the court sentenced Aguas in two drug misdemeanor cases and, in doing so, imposed the narcotics offender registration requirement of which Aguas complains. The court did not impose that requirement in the instant case. We decline Aguas’s invitation in his appellate reply brief to review whether the narcotics offender registration requirement was properly imposed in a case that is not before us. We also decline to address the separate contentions of error the Attorney General has raised for the first time in the appellate respondent’s brief and without filing a notice of appeal.
Procedural History[1]
Aguas was charged in an information with (1) taking a vehicle with a prior conviction in violation of Penal Code section 666.5, subdivision (a)[2] and Vehicle Code section 10851, subdivision (a) (count 1);[3] (2) receiving a stolen vehicle with a prior felony conviction in violation of sections 666.5, subdivision (a) and 496d, subdivision (a) (count 2); and (3) receiving stolen property in violation of section 496, subdivision (a) (count 3). The information further alleged Aguas had served two prior prison terms within the meaning of section 667.5, subdivision (b), and had been previously convicted of a serious and violent felony pursuant to sections 667, subdivisions (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1).
The jury found Aguas guilty on counts 2 and 3, and not guilty on count 1. As to count 3, the jury found the value of property involved was more than $950. Aguas admitted the prior prison term and prior strike sentencing enhancement allegations. Aguas moved the trial court to strike the prior strike sentencing enhancement; the court denied the motion.
The trial court sentenced Aguas to a total of eight years in prison by imposing a six-year term on count 2 (double the middle term); a concurrent sentence of four years on count 3 (double the middle term); and a consecutive term of one year for each of the two prior prison term enhancement allegations admitted by Aguas.
Aguas appealed.
Discussion
I.
The Trial Court Did Not Order Aguas to Register as a Narcotics Offender in This Case.
In his amended appellate opening brief, Aguas argues the trial court erred at the sentencing hearing by ordering Aguas to register as a narcotics offender under Health and Safety Code section 11590 because Aguas was neither charged with nor convicted of any drug offense. No narcotics offender registration requirement appears in the court’s minutes or in the abstract of judgment issued in this case.
Aguas’s argument stems from the court’s comment at the sentencing hearing that “[t]here’s a mandatory H&S 11590 registration that I’m also required—imposing this order too.” As pointed out by the Attorney General in the appellate respondent’s brief, after the court sentenced Aguas in the instant case, the court proceeded to sentence Aguas in two separate misdemeanor cases in each of which Aguas entered a guilty plea.
In his appellate reply brief, Aguas acknowledges the Attorney General’s response that the narcotics offender registration requirement was not imposed in the instant case. He argues the trial court erred by imposing that requirement in one of his misdemeanor cases and urges this court to strike the registration requirement imposed in that case.
We do not review contentions of error in cases that are not before us. Aguas’s misdemeanor case is not before this court in this appeal; our record does not show whether Aguas filed a notice of appeal in that case.
II.
Because the Attorney General Did Not File a Notice of Appeal in This Case, We Do Not Address the Contentions of Error Raised in the Appellate Respondent’s Brief.
In the appellate respondent’s brief, the Attorney General states: “In reviewing the record, respondent has found the trial court [orally] imposed an unauthorized sentence by suspending or striking the sentence as to count 3, receiving stolen property.” The Attorney General further states, “The trial court’s error does not require correction of the clerk’s minutes or the abstract of judgment, because both documents list the term as concurrent” to the sentence imposed on count 2. The Attorney General also contends certain clerical errors exist in the court’s minute order and/or in the abstract of judgment with regard to, inter alia, the restitution and parole revocation fines, the court operations fee and the criminal conviction assessment fee.
The Attorney General raises these issues for the first time in the context of Aguas’s appeal and thus did not afford the trial court the opportunity to correct the record in the first instance. Furthermore, the Attorney General did not appeal from the judgment in the instant case; the Attorney General’s effort to raise contentions of error in the appellate respondent’s brief is therefore improper and we do not further address those contentions here.
Disposition
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
GOETHALS, J.
[1] Given the limited issues raised on appeal, we need not discuss the facts underlying Aguas’s convictions.
[2] All further statutory references are to the Penal Code unless otherwise specified.
[3] As to count 1, the information alleged, pursuant to section 12022.6, subdivision (a)(1), that Aguas took property valued in excess of $65,000. The prosecution moved to dismiss that enhancement allegation and the trial court granted the motion.
