(Super. Ct. No. 10F08317)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Andrew Anthony Baima entered a negotiated plea of no contest to one count of possessing a completed check with the intent to defraud another, in exchange for dismissal of another charge and a stipulated lower prison term of 16 months if he appeared for sentencing after release on his own recognizance; he agreed that the court could sentence him to the upper term of three years if he failed to appear. He did not appear at the initial sentencing hearing. At a subsequent hearing, the court imposed the stipulated upper term.
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 skeletal factual basis for the plea to which defendant stipulated simply reiterated the complaint's allegations: he knowingly possessed a completed check with the intent to use it to defraud someone else in December 2010. (As the record does not include a police report and defendant waived preparation of a probation report, we do not have any additional underlying facts.)
The December 2010 complaint alleged the charge to which defendant entered his plea, and a charge of using identification documents to facilitate the fraud. On January 6, 2011, defendant appeared for a settlement conference, at which time the parties announced that they had reached the agreement we related above.
Before accepting his plea, the magistrate found defendant was making a voluntary and intelligent change of plea after consulting with his attorney. Confirming defendant's waivers of his right to a preliminary hearing and his constitutional rights at trial, the magistrate also solicited acknowledgments of the collateral consequences of the plea and waivers of the right to have the same judge impose sentence (People v. Arbuckle (1978) 22 Cal.3d 749, 756) and the right to withdraw the plea should the court impose a more severe sentence for a failure to appear on any basis (People v. Cruz (1988) 44 Cal.3d 1247 (Cruz)). As noted above, after accepting his plea the magistrate solicited defendant's waiver of the preparation of a probation report. The minutes reflect defendant's certification to superior court for sentencing. The magistrate released defendant on his own recognizance to tend to his recently deceased mother's affairs.
Despite defendant's assurance that he would be present for the scheduled sentencing hearing on January 20 "[u]nless I'm dead," defendant failed to appear and the court revoked his release on his own recognizance. After the still-living defendant was taken into custody, the court reappointed counsel and set the matter for sentencing on February 2.
At the renewed sentencing hearing, the court declined to grant a continuance for defendant to obtain retained counsel to review appointed counsel's actions in the entry of the plea, the court not finding anything in the record to indicate that the plea was not informed and voluntary. The court also overruled defense counsel's pro forma objection to the adequacy of the Cruz waiver. Defense counsel asked the court to impose the middle term of two years. The court imposed the stipulated three-year term. With respect to fines and fees, the court ordered a restitution fine of $200, and explicitly ordered only a $40 court-security fee and a $30 court-facilities fee. After ordering restitution in an amount to be determined later, it purported to "waive any discretionary fines and impose any other mandatory fines." It awarded only 28 days of conduct credits for 29 days of actual custody.
The minute order and abstract of judgment reflect the $200 restitution fine and a stayed parallel $200 parole-revocation fine, along with the fees for court security and facilities. Both include the statutory bases for the fines; both omit the statutory authorization for the court-facilities ...