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The People v. andrew Anthony Baima

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


August 17, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ANDREW ANTHONY BAIMA, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F08317)

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

P. v. Baima

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 fee, but the abstract includes the statutory basis for the court-security fee.

Defendant filed a timely notice of appeal. He did not seek a certificate of probable cause.

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 are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Counsel 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.

We take issue with the manner in which the court rendered judgment. We have recognized the tedious and perhaps pro forma nature of the requirement, but fees and fines are a part of the judgment, which must itself identify their amounts and statutory bases. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) The oral pronouncement constitutes the rendition of judgment; the minutes and abstract cannot add anything substantive to it. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zachery (2007) 147 Cal.App.4th 380, 387-388.) The judgment itself did not include the mandatory (stayed) fine for parole revocation, and if defendant were in fact subject to mandatory fines or fees other than those explicitly included, the recitation that the judgment also includes any other of these is insufficient to satisfy the court's obligations under High.

However, we are able to modify the judgment on appeal with respect to mandatory impositions (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157), so we will include a stayed parole-revocation fine (the People not having identified any other mandatory fine or fee). Since the minutes and abstract of judgment provide the statutory bases for the fines and fees (other than the court-facilities fee), which does not improperly augment the judgment's substantive provisions, we need direct the inclusion only of the latter in an amended abstract of judgment.

We also note that the trial court incorrectly calculated conduct credits. Since September 2010, on being sentenced to prison a qualifying defendant is entitled to a number of conduct credits equal to his custody credits; the record--other than a reference to his status on "nonrevokable [sic]" parole--does not indicate that defendant is disqualified from this one-for-one treatment for having prior or present convictions for "serious" or violent felonies, or for being subject to registration as a sex offender. (Pen. Code, § 2933, subd. (e)(3); see Stats. 2010, ch. 426, § 5 [amendments effective Sept. 2010].) We will thus modify the judgment to reflect 29 days of custody credit.

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

DISPOSITION

The judgment is modified to reflect the imposition of a stayed $200 parole revocation fine and the award of 29 days of conduct credit. As thus modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the corrected number of conduct credits and the statutory basis for the court-facilities fee (i.e., Gov. Code § 70373) and shall forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation.

We concur: BUTZ , J. HOCH , J.

20110817

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