People v. Ngissah CA3 ( 2016 )

Filed 1/4/16 P. v. Ngissah 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C078360
Plaintiff and Respondent, (Super. Ct. Nos. 62-120048 &
62-120146)
v.
FRANCIS AMITEYE NGISSAH,
Defendant and Appellant.
Appointed counsel for defendant Francis Amiteye Ngissah has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal. 3d 436.) We modify the judgment, direct the trial court
to correct the abstract of judgment, and affirm the judgment as modified.
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BACKGROUND
Defendant created and was the president of a preparatory academy with an “elite
basketball program.” He hired a coach to recruit students and obtained investors. He
was also the academy’s teacher. Defendant rented and furnished a home in which the
students would live. Children from around the world, including France and Brazil, were
students at the academy.
Between September 1, 2012, and December 31, 2012, defendant tortured and
abused four of his student athletes. Defendant used plastic zip ties to tie their wrists
behind their back and bind their ankles. He blindfolded some of the boys and put
wooden clothespins on their nipples, squeezing and twisting until their nipples were red
and sore. Defendant hit at least one of the students with a belt, leaving marks and
bruises, and sometimes defendant would pinch, with his fingers, the nipples of at least
one student until they were sore. Some of this abuse was done for defendant’s sexual
gratification.
To keep the students in the academy, defendant threatened them and restricted
their access to the Internet and telephones, limiting their ability to talk to their families.
In May 2012, while preparing for the academy to open, defendant purchased over
$7,000 worth of furniture from a single store. Before the credit card payment was
finalized, defendant created a fraudulent bank statement to show to his credit card
company, indicating the store received payment for the furniture. He then disputed the
charges with his credit card company and the charges were reversed, leaving defendant in
possession of furniture for which he did not pay.
Then, in October 2012, defendant used a former employee’s blank check, along
with the employee’s personal identifying information, without his permission, to
purchase more than $300 of goods at a warehouse store. Defendant used another
person’s check, without his permission, to pay one of his employees $700.
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In December 2012, defendant used the personal identifying information of yet
another of his employees, without the employee’s permission, to pay his personal cell
phone bill of more than $300. And in January 2013, defendant paid his personal utility
bill of more than $300 using the identifying information of a local basketball booster
club.
The People subsequently filed an information in Placer County Superior Court,
case No. 62-120048 (case No. 48), charging defendant with identity theft, in violation of
Penal Code section 530.5, subdivision (a)1 (counts one, seven, nine, eleven, twelve,
fifteen, eighteen, twenty-one), second degree commercial burglary, in violation of section
459 (counts two, four, six, thirteen), obtaining services by false pretenses, in violation of
section 532, subdivision (a) (counts three, seventeen), nonsufficient funds, in violation of
section 476, subdivision (a) (counts five, ten, fourteen), forgery, in violation of section
470, subdivision (a) (count eight), fraudulent use of an access card, in violation of 484g
(count sixteen), unauthorized access to a computer, in violation of section 502,
subdivision (c)(1) (counts nineteen, twenty-two), and petty theft, in violation of section
488, a misdemeanor (counts twenty, twenty-three). The People further alleged the
offenses were committed while defendant was released on bail (§ 12022.1).
On July 14, 2014, the People filed a consolidated Information in Placer County
Superior Court, case No. 62-120146 (case No. 46), charging defendant with torture, in
violation of section 206, with an allegation of great bodily injury under section 12022.7
(count one), assault with force likely to cause great bodily injury, in violation of section
245, subdivision (a)(4) (counts two, four), felony false imprisonment, in violation of 236
(counts three, five, seven, nine, eleven, fourteen, sixteen, nineteen), corporal injury to a
child, in violation of 273d, subdivision (a), (counts six, eight, ten, thirteen, fifteen,
1 Further undesignated statutory references are to the Penal Code.
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eighteen), annoying a child, in violation of 647.6, subdivision (a), a misdemeanor (counts
twelve, seventeen, twenty), cruelty to a child, in violation of 273a, subdivision (b), a
misdemeanor (counts twenty-one, twenty-two, twenty-three), and battery, in violation of
section 242, a misdemeanor (count twenty-four).
Defendant subsequently entered into a negotiated plea agreement. In case No. 48,
he entered a plea of no contest to obtaining services by false pretenses (count three), and
identity theft (counts seven, nine, twelve, eighteen). In case No. 46, he entered a plea of
no contest to assault (count two), corporal injury to a child (counts six, thirteen,
eighteen), and annoying a child (count twenty). In exchange for defendant’s plea, the
People stipulated to a term of 10 years in state prison. The People also agreed they would
move to dismiss the remaining charges with a Harvey2 waiver, and the trial court agreed
to dismiss the remaining charges at sentencing.
On December 17, 2014, pursuant to the negotiated plea agreement, the trial court
sentenced defendant to an aggregate term of 10 years in state prison. In both cases, the
court ordered defendant to pay $240 in restitution fines (§ 1202.4, subd. (b)), and $240 in
suspended parole revocation restitution fines (§ 1202.45). The court also ordered
defendant to pay a court operations assessment totaling $200 (§ 1465.8) and a criminal
conviction assessment totaling $150 (Gov. Code, § 70373). The court also awarded
defendant a total of 1,324 days of custody credit.
Defendant appeals; he obtained a certificate of probable cause.
DISCUSSION
Counsel has filed an opening brief setting forth the facts of the case and requests
that we review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal. 3d 436.) Defendant was advised by counsel of the right
2 People v. Harvey (1979) 25 Cal. 3d 754.
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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.
We note the abstract of judgment incorrectly reflects the amount of restitution
fines and the suspended parole revocation restitution fines (§§ 1202.4, subd. (b), 1202.45)
ordered in both cases as $200 rather than the $240 fines imposed. “An abstract of
judgment is not the judgment of conviction; it does not control if different from the trial
court’s oral judgment and may not add to or modify the judgment it purports to digest or
summarize. [Citation.]” (People v. Mitchell (2001) 26 Cal. 4th 181, 185.)
Appellate courts may order correction of abstracts of judgment that do not
accurately reflect the sentencing court’s oral pronouncement. (People v. Mitchell, supra,
at p. 185.) Accordingly, we order the trial court to correct the abstract of judgment by
increasing the restitution fines in both cases to $240.
In addition, the abstract of judgment states, incorrectly, that defendant was
awarded a total of 1,342 days of custody credit. The correct amount is 1,324 days.
Our independent review of the record further reveals that the trial court, apparently
inadvertently, failed to dismiss the balance of the pending charges in both cases, as
contemplated in the negotiated plea agreement. We modify the judgment accordingly
(§ 1260) in order to conform the judgment to the plea.
DISPOSITION
The judgment is modified to dismiss the balance of the charges pending in both
cases. The judgment is affirmed as modified.
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The trial court is directed to prepare an amended abstract of judgment as described
in this opinion and forward a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.
NICHOLSON , Acting P. J.
We concur:
MAURO , J.
MURRAY , J.
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