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The People v. Adam Michael Flynn

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


May 3, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ADAM MICHAEL FLYNN, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F08622)

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

P. v. Flynn

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Adam Flynn entered negotiated pleas of no contest to two counts of forcible child molestation, two counts of child molestation, and one count of the attempted molestation of a 15-year-old more than 10 years younger than he was. He also admitted an allegation of a prior conviction for a "serious" felony that subjected him to alternative sentencing (Pen. Code, § 667, subd. (e).) The trial court sentenced defendant to the prison term stipulated in the plea, and dismissed the rest of the complaint. It limited presentence conduct credits to 15 percent of defendant's actual custody because the convictions included violent felonies. (Pen. Code, § 667.5, subd. (c)(6); § 2933.1, subd. (a) [imposing this limitation on conduct credits "[n]otwithstanding any other law"].)

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 to the following recited factual basis for the pleas. In September 2009, defendant forcibly placed his mouth on the vagina of the 13-year-old victim, and forcibly placed her hand on his penis. He also placed his mouth on her breast and inserted his finger into her vagina. (The summary of the police report states that the victim was the niece of defendant, and the conduct had taken place in a backyard play house after midnight.) In October or November 2008, he had attempted to commit an unspecified lewd act with a 15-year-old victim who was more than 10 years younger than he was. (The summary of the police report states that the second victim was the first victim's older sister, and the conduct had taken place in a motel room to which he had taken her.) Defendant had a conviction in 1995 for child abuse with a finding of great bodily injury.

The original November 2009 complaint charged defendant with three counts of forcible molestation of the 13-year-old, and four counts of nonforcible molestation. After a number of settlement conferences, the prosecutor submitted an amended complaint at a hearing in September 2010 that added the count involving the other victim and the recidivist allegation. The magistrate ordered it filed. The parties then informed the magistrate they had reached the disposition summarized above.

Before accepting the pleas and admission, the magistrate determined that defendant was entering voluntary and intelligent pleas after adequate consultation with counsel, confirmed that defendant was waiving his right to a preliminary hearing and his constitutional rights, and explained the consequences of the pleas (noting a four-year period of parole). According to the minute order, the magistrate then certified defendant to the superior court for sentencing.

At sentencing, defendant (through counsel) advised the trial court of his desire to withdraw his plea, although he did not articulate any legal basis for the motion (saying later at the close of sentencing only that he felt he should be allowed to go to trial). After sentencing defendant in accordance with the plea agreement, the trial court imposed a $200 restitution fine (along with the stayed identical fine for a violation of parole), and then said "Any other mandatory fines are imposed. Any discretionary fines are stricken," without specifying any other amounts or statutory bases. It advised defendant that he was in fact subject to a term of parole of up to 20 years, subject to a reduction in the discretion of the Board of Prison Terms. According to the minute order, the trial court dismissed the other counts.

Defendant filed a request for a certificate of probable cause (CPC) with his notice of appeal. The trial court denied the request.*fn1

We appointed appellate counsel for defendant. Counsel had originally filed an opening brief challenging a clerical error in the abstract of judgment that listed the restitution and stayed revocation fine as $8,200 rather than $200. However, we granted his request to withdraw that brief, after which counsel obtained a corrected abstract from the trial court. Counsel has now 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 advised defendant of the right to file a supplemental brief within 30 days of the date of filing the opening brief.

I

Defendant has availed himself of the opportunity to file a supplementary brief. His arguments do not have any merit.

He seems to contend he is entitled to a retrial because the trial court did not impose a five-year enhancement for his prior serious felony. (Pen. Code, § 667, subd. (a).) Putting aside the illogic of the claim, the People did not seek an enhancement based on the prior conviction under that subdivision; they had alleged that it qualified defendant for the alternate sentencing scheme under subdivision (e). As they did not plead the five-year enhancement, it does not have any bearing on his sentence. (People v. Jackson (1985) 37 Cal.3d 826, 835, fn. 12.)

Defendant argues he should be entitled to withdraw his pleas and proceed to trial. However, the only specific ground he urges is the misadvisement at the time of his pleas that he would be subject to a four-year period of parole. He now claims that had he been aware that the period of parole was 20 years he never would have entered his pleas. However, his failure to raise this objection at sentencing forfeits the issue on appeal. (People v. Turner (2002) 96 Cal.App.4th 1409, 1412-1413.)

We have otherwise undertaken an independent examination of the entire record. We do not find any arguable error that would result in a disposition more favorable to defendant.

II

We must, however, address another issue. Other than the $200 restitution/revocation fines, the oral pronouncement of judgment did not include any sums or statutory bases for fees or fines beyond the conclusory shorthand we noted above. The minute order designated "$40: CSF" without any statutory basis (presumably the court security fee (Pen. Code, § 1465.8)). The abstract of judgment specified the court security fee total of $200 (with its statutory basis) and additionally specified a "BOOKING FEE $270.17," a "CLASS FEE $51.34," and a "COURT FACILITY FEE $150.00" (presumably pursuant to Gov. Code, §§ 29550.2 and 70373). These fee amounts (and the statutory bases for them) had all appeared in the probation report.

It is the oral pronouncement that constitutes the rendition of judgment; the minutes and abstract cannot add to it. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zachery (2007) 147 Cal.App.4th 380, 387-388.) While we recognize the tedious and perhaps pro forma nature of the requirement, fees and fines are a part of the judgment, which must identify their amounts and statutory bases. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Here, the trial court did not identify the amounts of any of the fees, or even resort to the impermissible (though generally harmless) practice of incorporating the contents of the probation report by reference (cf. People v. Pierce (1995) 40 Cal.App.4th 1317, 1320 [statement of reasons]). While it is true that the court security and facilities fees are essentially a mechanical computation based on the number of counts and the fee specified in the statutes, which might allow us simply to amend the judgment, the same is not true of the booking and classification fees. We must therefore remand for the trial court to impose these fees in the proper manner.

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded for proper imposition of all fees. The trial court shall then prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

We concur: HULL , J. MURRAY , J.


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