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The People v. Daniel Wayne Tucker


December 27, 2010


(Super. Ct. No. 09F4565)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Tucker



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Daniel Wayne Tucker entered a negotiated plea of guilty to assaulting a peace officer and admitted an allegation that he had a 2001 Washington conviction for kidnapping. The trial court sentenced him to state prison in accordance with the plea.

Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we will provide a summary of the offense and the proceedings in the trial court.

The parties stipulated that the factual basis for the plea was contained in the transcript of the preliminary hearing. As is pertinent to his conviction, defendant fled in his car after an officer attempted to initiate a traffic stop in June 2009 based on a plate violation and a suspicion that the car had previously fled a sobriety checkpoint. Defendant evaded his initial pursuers, driving off at a high rate of speed in the wrong direction down a one-way street. Another officer took up the chase, following defendant into a parking lot. As that officer drove toward it, defendant's car quickly accelerated directly at the officer's car. Both drivers swerved to their left, averting a head-on collision by a couple of feet.

The complaint charged defendant with recklessly fleeing a police pursuit in the wrong direction on a highway, fleeing a police pursuit, and providing false identification to a peace officer. It also alleged defendant had two prior Washington felony convictions, and had served a prior prison term.

At the outset of the preliminary hearing, the prosecutor stated he was seeking a holding order on an uncharged count of assaulting a peace officer. Except for the charge of providing false identification, the magistrate held defendant to answer on the remaining offenses.

After defendant rejected a plea offer in August 2009, the case proceeded through settlement negotiations and continuances until the hearing on defendant's change of plea in March 2010. The trial court disclosed at the start of the hearing that a close relative was a police officer; defendant declined to seek recusal. Under the terms of the plea, defendant would plead guilty to the assault and admit the prior kidnapping conviction, in exchange for dismissal of the rest of the charges and allegations (the prosecutor agreeing to dismiss the allegation of the other Washington conviction because he believed there was a problem with proving it had the same elements as residential burglary under California law) and consideration of a request to strike the admitted recidivist allegation. The plea did not include a stipulated sentence. Defendant confirmed his execution of a written waiver of his trial rights and acknowledgement of the collateral consequences of his plea. The trial court, which had presided over the preliminary hearing, determined there was a factual basis and accepted defendant's plea after confirming that he was making a voluntary and informed decision.

Defendant submitted a cursory written request for the trial court to strike his admission of the prior conviction, citing his remorse and addiction to controlled substances. He also claimed the punishment otherwise was disproportional to the offense.

The trial court indicated at the start of the sentencing hearing that it was inclined to follow the recommendation of the probation report. Defendant then testified that he had acted out of panic because he had an outstanding warrant in Washington for violating probation, and had been remorseful for his actions ever since.*fn1 He described his kidnapping conviction as taking his girlfriend with him as he fled after hearing approaching sirens when a neighbor called 911 to report domestic violence. He had not committed any new offenses since his release from custody for that offense in November 2008. Lacking even a GED and having only minimal vocational experience, he was pursuing educational opportunities while in custody on the present offenses and had been investigating programs for his significant history of methamphetamine abuse (which he believed stemmed from an effort to self-medicate his mental disorders).

The trial court declined to exercise its discretion to strike, because the 50-year-old defendant's criminal history*fn2 indicated that he was squarely within the spirit of California's recidivist provisions. It imposed the recommended upper term of five years, and doubled it (§ 667, subdivision (e)(1)). After soliciting defendant's waiver of an oral recitation of statutory authority for them, it imposed a $1,000 restitution fine (and the stayed parallel fine for violation of parole) with a 10 percent administrative fee, a fine of $720, and two assessments of $30. The court ordered defendant to pay restitution in an amount that it would determine subsequently, revoked his driving privileges, and required him to submit fingerprints and a DNA sample. It awarded 172 days of conduct credit for 344 days of custody.*fn3

We appointed appellate counsel for defendant. Counsel has filed an opening brief setting forth the facts of the case and asking us to review the record to determine whether there were any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel has also advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days have elapsed, and we have not received any communication from defendant. Having undertaken an examination of the entire record, we do not find any arguable error that would result in a disposition that is more favorable to him.

However, the abstract of judgment fails to include the breakdown of the orally imposed $720 figure that appears in the minute order (which reveals that it is a composite of a section 1202.5 fine, a crime-lab fine, a booking fee, and a domestic-violence fee, in a total amount of $723). As it is the abstract (and not the minute order) that is transmitted to the Department of Corrections and Rehabilitation (Department) and informs it of the proper allocations of payments from a defendant (People v. Mitchell (2001) 26 Cal.4th 181, 185-186), we direct the trial court to prepare an amended abstract of judgment that includes a breakdown of the $720 figure. In preparing the amended abstract, the trial court shall determine whether the asserted statutory authorizations are accurate.


The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in compliance with this opinion and forward a certified copy to the Department.

We concur: HULL ,J. ROBIE ,J.

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