People v. Deaton CA3 ( 2013 )

Filed 10/18/13 P. v. Deaton 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE, C073024
Plaintiff and Respondent, (Super. Ct. Nos. CRF1255 &
CRF111393)
v.
JEREMY LEE DEATON,
Defendant and Appellant.
Appointed counsel for defendant Jeremy Lee Deaton has filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal. 3d
436.) We affirm the judgment, but direct correction of the abstract.
BACKGROUND
On March 17, 2011, law enforcement found defendant in possession of a used
syringe and two plastic baggies containing .8 grams of methamphetamine. Defendant
1
pled no contest in Yolo County case No. CRF1113931 to possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)) and admitted having served two prior
prison terms (Pen. Code,2 § 667.5). The trial court placed defendant on Proposition 36
probation pursuant to section 1210.1.
On September 16, 2011, a petition for violation of probation was filed. Defendant
admitted the violation of probation and probation was reinstated.
On January 4, 2012, officers found defendant in possession of .68 grams of
methamphetamine, a used syringe, and prescription medication. Defendant pled no
contest in case No. CRF1255 to possession of a controlled substance (Health & Saf.
Code, § 11377, subd. (a)) and admitted he had served a prior prison term (§ 667.5). He
also admitted he had violated his probation in case No. CRF111393. Defendant was
again placed on Proposition 36 probation.
On August 24, 2012, a petition for violation of probation in both cases was filed
alleging defendant had failed to report his change of address and his whereabouts were
unknown. Probation was summarily revoked. An additional set of petitions for violation
of probation were filed on September 28, 2012, alleging new felony violations for
possession of a controlled substance and possession of paraphernalia (case No.
CRF123798), and alleging defendant had been associating with narcotics users and in
places where narcotics were being used in violation of the conditions of his probation.
On November 26, 2012, the prosecutor dismissed case No. CRF123798 and
defendant admitted violating his probation in case Nos. CRF111393 and CRF1255.
1 All case numbers refer to Yolo County Superior Court numbers.
2 Further undesignated statutory references are to the Penal Code.
2
On January 9, 2013, the trial court sentenced defendant to three years for
possession of a controlled substance plus one year each for the two prior prison terms in
case No. CRF111393, and a consecutive eight months for possession of a controlled
substance and stayed one year for the prior prison term in case No. CRF1255, for a total
term of five years eight months, to be served locally. (§ 1170, subd. (h).)
The trial court awarded defendant 153 days of presentence custody credit in case
No. CRF111393 and 92 days of presentence custody credit in case No. CRF1255. The
trial court also reaffirmed previously ordered fines, fees, and penalty assessments.
Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)
DISCUSSION
Appointed counsel has asked us to review the record for error. 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. More than 30 days elapsed, and we received no
communication from defendant. Our review of the record discloses no arguable error in
defendant’s favor. It does, however, reveal errors in the abstract of judgment.
First, the abstract erroneously lists restitution fines (and accompanying revocation
fines) as $220 on each case, rather than the previously-imposed restitution fine of $200 in
both cases. Restitution fines survive revocation of probation. (People v. Arata (2004)
118 Cal. App. 4th 195, 201-203.) The abstract should reflect the previously-imposed
amounts.
Second, the trial court previously imposed $500 fines in both cases. The abstract
of judgment erroneously lists each of these fines as $700 and misidentifies them as
imposed pursuant to section 1202.5 rather than section 672.3 The abstract of judgment
3 Section 672 provides in pertinent part: “Upon a conviction for any crime punishable by
imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the
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should reflect the proper amounts and statutory authority.4
DISPOSITION
The judgment is affirmed. We direct the trial court to prepare a corrected abstract
of judgment in accordance with this opinion and forward a certified copy thereof to the
relevant authorities.
DUARTE , J.
We concur:
RAYE , P. J.
MAURO , J.
court may impose a fine on the offender not exceeding . . . ten thousand dollars ($10,000)
in cases of felonies, in addition to the imprisonment prescribed.”
4 In the interest of judicial economy, we order correction of the abstract of judgment
without having requested supplemental briefing. A party claiming to be aggrieved by this
procedure may petition for rehearing. (Gov. Code, § 68081.)
4