Filed 11/8/18 P. v. Fraser 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
JAMES ELWYN FRASER,
Defendant and Appellant.
|
G055664
(Super. Ct. No. 7HF2496)
O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
1. Introduction
Defendant James Elwyn Fraser (Defendant) appealed from a postjudgment order clarifying that his convictions on four counts of first degree burglary (counts 10, 14, 16, and 18) were to be considered violent felonies under Penal Code section 667.5, subdivision (c)(21) (undesignated code sections are to the Penal Code). The consequence of that clarification is that Defendant is subject to the 15 percent worktime credit limitation of section 2933.1.
Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Counsel did not provide issues to assist us in conducting our independent review in accordance with Anders v. California (1967) 386 U.S. 738. Defendant was granted 30 days to file written arguments in his own behalf, but did not file anything.
We have examined the entire record and counsel’s Wende brief. After considering the entire record, we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
2. Facts and Procedural History
As part of an agreement, Defendant pleaded guilty to 26 counts, including 10 counts for first degree residential burglary (counts 2‑5, 8‑10, 14, 16 & 18).[1] As to counts 10, 14, 16, and 18, the information alleged a nonaccomplice was present during the commission of the burglary (§ 667.5, subd. (c)(21)). The trial court sentenced Defendant to 19 years four months in prison. In a prior nonpublished opinion, People v. Fraser (July 28, 2001, G043520), we affirmed the judgment as modified to stay execution of sentence on counts 12, 15, 17, 19, 24, and 25. We granted Defendant’s petition for writ of habeas corpus and reversed the convictions on counts 20 and 21, for receiving stolen property.
In our prior opinion, we recited the facts based on Defendant’s statement of the factual basis for the plea:
“[Defendant] admitted that between June 19, 2007 and December 16, 2007, he unlawfully entered the inhabited dwelling houses of the following persons, with the intent to commit larceny: Hemjo Klein, Colleen Holthouse, Julie Sandler, Paolo Sassone‑Corsi, Gina Caviar, Ronald Gill, David Hansen, Monte Koch, Michael Ghourdjian, and Darren Foster. Hansen, Koch, Ghourdjian, and Foster were present during the burglaries of their homes.
“On or between July 1, 2007 and July 30, 2007, and on or between December 15 and 16, 2007, [Defendant] unlawfully entered two locked motor vehicles with the intent to commit larceny. On or between September 15, 2007 and October 15, 2007, [Defendant] unlawfully entered a detached garage, owned by Jean Harris, with the intent to commit larceny. On or between October 10 and 11, 2007, and on or between November 12 and 13, 2007, [Defendant] took and carried away money and personal property of more than $400 in value from Robert McKray and Antonio Duarte.
“On or between October 22 and 23, 2007, [Defendant] unlawfully took and carried away a firearm belonging to David Hansen. On or between November 12 and 13, 2007, on or between November 18 and 19, 2007, and on or between November 30, 2007 and December 1, 2007, [Defendant] unlawfully took and drove three motor vehicles without their owners’ consent and with the intent to permanently deprive their owners of possession.
“On December 18, 2007, [Defendant], a convicted felon, unlawfully possessed a firearm, and, on the same day, knowingly possessed and concealed the personal property obtained by theft from Antonio Duarte, Karen Montgomery, Jon McMaster, Jean Harris, Edward Warmington, and Edward Stapleton.” (People v. Fraser, supra, G043520.)
In a letter dated August 25, 2017, the Department of Corrections and Rehabilitation (DCR) pointed out that as to counts 10, 14, 16, and 18, the abstract of judgment and sentencing minutes did not indicate whether those offenses were considered violent felonies within the meaning of section 667.5, subdivision (c)(21). That section makes residential burglary a violent felony if another person, other than an accomplice, were present in the residence during the commission of the burglary. The DCR requested clarification so that it could determine if Defendant was subject to the worktime credit limitation of section 2933.1.
On October 3, 2017, in response to the DCR’s letter, the trial court, in chambers with no court reporter or parties present, considered the matter and clarified the sentence. As reflected in the court minutes, the court reviewed the statement of the factual basis supporting Defendant’s plea and ruled: “[D]efendant admitted on Counts 10, 14, 16, and 18, that a non-accomplice was present in the residence during the commission of each of these four burglaries. . . . Based on these admissions, Counts 10, 14, 16, and 18 qualify as violent felonies.” The court directed the preparation of an amended abstract of judgment. Defendant timely appealed.
3. Discussion
We have reviewed the record in accordance with our obligations under Wende and we find no arguable issues on appeal. Section 667.5, subdivision (c)(21) provides that a first degree burglary is a violent felony if it is charged and proved that “another person, other than an accomplice, was present in the residence during the commission of the burglary.” The information made that allegation as to counts 10, 14, 16, and 18. In the factual bases for the plea, Defendant admitted “during the residential burglaries of victims: Hansen, Koch, Ghourdjian and Foster (none of whom are accomplices) they were present during the commission of the residential burglaries.”
4. Disposition
The postjudgment order is affirmed.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
[1] An information had charged Defendant with two counts of vehicle burglary in the second degree (§§ 459, 460, subd. (b) [counts 1 & 19]), 10 counts of residential burglary in the first degree (§§ 459, 460, subd. (a) [counts 2‑5, 8‑10, 14, 16, & 18]), one count of second degree burglary (§§ 459, 460, subd. (b) [count 6]), two counts of grand theft (§ 487, subd. (a) [counts 7 & 13]), one count of theft of a firearm (§ 487, subd. (d)(2) [count 11]), three counts of unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a) [counts 12, 15, & 17]), six counts of receiving stolen property (§ 496, subd. (a) [counts 20 & 23‑27]), one count of receiving a stolen motor vehicle (§ 496d, subd. (a) [count 21]), and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1) [count 22]). As to counts 10, 14, 16, and 18, the information alleged a nonaccomplice was present during the commission of the burglary (§ 667.5, subd. (c)(21)).
