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The People v. Willie Russell

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


January 20, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
WILLIE RUSSELL, DEFENDANT AND APPELLANT.

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

P. v. Russell

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On June 3, 2009, Sacramento County Sheriff's deputies responded to a report of domestic violence. They arrived at the scene to find the victim inside a residence being treated by paramedics. The victim's face was swollen in numerous places and she was bleeding from a cut near her mouth. The victim told the deputies that defendant Willie Russell, her boyfriend, had been released from prison the day prior and, despite a stay-away order, had come to her house against her wishes and stayed the night.

The victim stated that earlier in the day, defendant began drinking and demanded that she give him a ride somewhere. During the ride, defendant began accusing the victim of being with another man. Defendant became angry and started beating the victim with his closed fist. The victim pulled over to the side of the road where defendant continued assaulting her in front of numerous witnesses. The victim estimated defendant hit her in the face and body with a closed fist approximately 15 times.

Defendant was arrested and ultimately charged with spousal abuse (Pen. Code, § 273.5, subd. (a)) and violation of a protective order (Pen. Code, § 273.6, subd. (a)). It was further alleged that defendant had previously been convicted of a serious felony within the meaning of Penal Code section 1192.7, subdivision (c). Defendant pled no contest to the charge of spousal abuse (Pen. Code, § 273.5, subd. (a)) and admitted the prior strike. In exchange, the prosecution agreed to dismiss the remaining charge and stipulate to a prison sentence of four years (the lower term of two years, doubled for the prior strike).

At sentencing, the trial court rejected the probation department's recommended sentence of six years in state prison (the middle term of three years, doubled for the prior strike), choosing instead to sentence defendant according to his plea agreement. Accordingly, defendant was sentenced to an aggregate term of four years in state prison, and his probation in an unrelated case was terminated. Defendant also was ordered to pay a restitution fine of $200 (Pen. Code, § 1202.4, subd. (b)); a second restitution fine of $200 was stayed pending defendant's successful completion of parole (Pen. Code, § 1202.45).

The court further ordered defendant to pay direct restitution to the victim (Pen. Code, § 1202.4, subd. (a)), in an amount to be determined later, and a $30 court facilities fee (Gov. Code, § 70373). The court waived the court security fee (Pen. Code, § 1465.8, subd. (a)(1)), the main jail booking fee (Gov. Code, § 29550.2), and the main jail classification fee (Gov. Code, § 29550.2). Defendant also was awarded a total of 429 days of custody credit.

Defendant appeals; his request for a certificate of probable cause was denied. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests 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.

Defendant filed a supplemental brief claiming his appointed trial counsel rendered ineffective assistance by allowing him to admit the strike allegation. The contention challenges defendant's plea to the strike allegation and is not reviewable without a certificate of probable cause. (Pen. Code, § 1237.5; People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245; see People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)

Defendant also contends trial counsel failed to adequately investigate the charges pending against him and failed to adequately advise him of the consequences of his plea, including that he was pleading to a strike offense. These contentions challenge defendant's plea to the charge of spousal abuse and are not reviewable without a certificate of probable cause. (Pen. Code, § 1237.5; People v. Stubbs, supra, 61 Cal.App.4th at pp. 244-245; see People v. Mendez, supra, 19 Cal.4th at pp. 1098-1099; People v. Panizzon, supra, 13 Cal.4th at pp. 74-75.)

Defendant also contends trial counsel was ineffective for failing to file a Romero motion after the plea was entered.*fn1 Upon defendant's entry of a negotiated plea, trial counsel could not request the court to consider exercising its discretion to strike the recidivist finding pursuant to section 1385. (People v. Cunningham (1996) 49 Cal.App.4th 1044, 1048.) Nor can defendant premise on appeal a claim of ineffective assistance based on the failure of trial counsel to request such a consideration as part of the negotiated plea, because we can assume the prosecutor was unwilling to include any provision to this effect. (People v. Pope (1979) 23 Cal.3d 412, 426.)

Defendant further contends counsel failed to correct errors in the probation report. Specifically, defendant contends the arrest date listed in the probation report is incorrect, and argues the facts regarding his crime were inaccurate. Even assuming defendant's contentions are correct, the information required to support them is outside the record. Accordingly, this claim of ineffective assistance is more properly resolved through a petition for habeas corpus.*fn2 (People v. Pope, supra, 23 Cal.3d at p. 426.)

Having undertaken an examination of the entire record, we find an error in the judgment that must be corrected. In the interest of judicial economy, we address the error without requesting supplemental briefing. A party claiming to be aggrieved may petition for rehearing. (Gov. Code, § 68081.)

At sentencing, the trial court failed to impose the court security fee (Pen. Code, § 1465.8), which is $30 per conviction, to be collected by the county and paid to the state. This fee is mandatory. (Cf. People v. Wallace (2004) 120 Cal.App.4th 867, 877.) Therefore, it is subject to imposition on appeal even if the prosecutor failed to object in the trial court. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) We shall modify the judgment accordingly.

Having reviewed the record, we find no other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to order defendant to pay the court security fee of $30. (Pen. Code, § 1465.8.) As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect imposition of the $30 court security fee, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: HULL , J. ROBIE , J.


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