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The People v. John Robert Giltner

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 14, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN ROBERT GILTNER, DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 09F08814, 10F00844, 10F01638)

The opinion of the court was delivered by: Butz J

P. v. Giltner

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant John Robert Giltner was convicted by his no contest pleas in two Sacramento County cases. His 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. We find no concerns regarding presentence credits; however, there is an error in the judgment in that defendant should have been ordered to pay a total of $90 for court security fees in Sacramento County case No. 09F08814 pursuant to Penal Code section 1465.8. We shall modify the judgment accordingly.

Pursuant to Kelly, we provide a summary of the offenses and the proceedings in the trial court.

I.

Sacramento County Case No. 09F08814

On November 30, 2009, while driving a car, defendant attempted to evade a police officer. At least one red light on the officer's vehicle was activated as well as the siren. In his effort to evade the officer, defendant drove his vehicle with wanton disregard for the safety of others. That same day, defendant transported a usable quantity of methamphetamine.

Defendant was arrested and charged in case No. 09F08814 with willfully evading a pursuing peace officer's motor vehicle with wanton disregard for the safety of persons or property (Veh. Code, § 2800.2, subd. (a)--count one); carrying a dirk or dagger concealed upon his person (Pen. Code, § 12020, subd. (a)--count two); possessing methamphetamine for the purpose of sale (Health & Saf. Code, § 11378--count three); transporting methamphetamine (Health & Saf. Code, § 11379--count four); possession of a sawed-off shotgun (Pen. Code, § 12020, subd. (a)--count five); being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)--count six); driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)--count seven); and being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)--count eight). It was further alleged defendant was previously convicted of a serious or violent felony. (Pen. Code, §§ 1192.7, subd. (c), 667, subds. (b)-(i) & 1170.12.)

Sacramento County Case No. 10F00844

While out on bail in case No. 09F08814, defendant was found in possession of methamphetamine for the purpose of sale. Defendant was charged in case No. 10F00844 with possessing methamphetamine for the purpose of sale. (Health & Saf. Code, § 11378.) It was further alleged that defendant committed the crime while he was out on bail (Pen. Code, § 12022.1) and defendant was previously convicted of a serious or violent felony (Pen. Code, §§ 1192.7, subd. (c), 667, subds. (b)-(i), & 1170.12.).

Sacramento County Case No. 10F01638

On March 16, 2010, defendant was found in possession of a usable quantity of methamphetamine while armed with a loaded, operable nine-millimeter handgun. Defendant was arrested and charged with being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)--count one); possessing methamphetamine for the purpose of sale (Health & Saf. Code, § 11378--count two); possessing methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)--count three); carrying a concealed, unregistered firearm (Pen. Code, § 12025, subd. (b)(6)--count four); and carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(2)(F)--count five).

It was further alleged that defendant committed these crimes while he was out on bail in case Nos. 09F08814 and 10F00844. (Pen. Code, § 12022.1.) It was also alleged that defendant was previously convicted of a serious or violent felony in 2000 (Pen. Code, §§ 1192.7, subd. (c), 667, subds. (b)-(i), & 1170.12.).

Defendant's Plea and Sentence

In case No. 09F08814, defendant pleaded no contest to the charges of evading a peace officer with wanton disregard for the safety of others (count one), transporting methamphetamine (count four) and driving under the influence of alcohol and/or drugs (count seven). Defendant also admitted the prior serious felony conviction.

In case No. 10F01638, defendant pleaded no contest to the charge of possessing methamphetamine while armed with a firearm (count three) and admitted the prior serious felony conviction.

In exchange for his plea, case No. 10F00844 and the remaining charges in case Nos. 09F08814 and 10F01638 were dismissed with Harvey*fn1 waivers. Defendant waived a probation report. The trial court imposed a stipulated aggregate term of nine years four months in state prison, imposed various fines and fees, and awarded defendant 74 days of presentence custody credit (50 days of custody credit and 24 days of conduct credit).*fn2

II. Defendant appeals; his request for a certificate of probable cause was denied.

Appointed counsel filed an opening brief that sets forth the facts of the cases and asked this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 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 have elapsed and we have received no communication from defendant.

Our examination of the record reveals an error in that the trial court imposed only one $30 court security fee in each case. Penal Code section 1465.8 requires the court impose a $30 court security fee for every conviction. Defendant was convicted of three crimes in case No. 09F08814; thus the court should have imposed three mandatory $30 court security fees in that case. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865 [Pen. Code, § 1465.8 "unambiguously requires a fee to be imposed for each of defendant's convictions. Under this statute, a court security fee attaches to 'every conviction for a criminal offense.'"].) We shall modify the judgment accordingly. Any party aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)

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 modified to include three court security fees, for a total of $90, in Sacramento Superior Court case No. 09F08814. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the correct number of court security fees (at item 9.d.) and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur:

RAYE , PJ. BLEASE,J.


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