P. v. Stapleton CA3 ( 2013 )

Filed 3/27/13 P. v. Stapleton 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C072054
Plaintiff and Respondent, (Super. Ct. No. CM036783)
v.
MICHAEL JACOB STAPLETON,
Defendant and Appellant.
Appointed counsel for defendant Michael Jacob Stapleton has asked this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find an error that requires
modification of the judgment and shall affirm the judgment as modified.
BACKGROUND
On July 7, 2012, a sheriff’s deputy spoke with a domestic violence victim who
reported she had been dating defendant for approximately six months and was five
months pregnant with his child. She had picked up defendant’s personal belongings at
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the jail after his recent incarceration, and used his electronic debit card to withdraw $80
to loan to a friend.
When defendant was released from jail, he became very angry about the missing
money. He left her a voicemail wherein he stated, “I’m not a person who rolls over. I’m
not a sucker or a bitch. I’m gonna come and get my money. If you call the cops, I will
beat your fucking ass. You’re gonna have a broken nose. I don’t care if you are female
or not. You’re gonna give me my money or you’re gonna get fucked up.” She was at her
mother’s house when she received the message. Five minutes later, defendant came to
her mother’s house and demanded his money. When she told him she did not have it, he
grabbed her mother’s purse and dumped its contents. She told defendant to leave, at
which point, he grabbed her by the hair and slammed her into the wall. When her mother
then told him to leave, he produced a knife, waved it at her and her mother, and yelled,
“What do you think about this?”
The People charged defendant with inflicting corporal injury on a cohabitant or
child’s parent (Pen. Code,1 § 273.5, subd. (a)) with two prior prison term enhancement
allegations (§ 667.5, subd. (b)). He was also charged with misdemeanor brandishing of
a deadly weapon (§ 417, subd. (a)(1)).
On July 26, 2012, defendant pled guilty to inflicting corporal injury on a
cohabitant or child’s parent. In exchange for his plea, the enhancements and
misdemeanor charge were dismissed with a Harvey waiver.2 On September 6, 2012, the
trial court denied defendant probation and sentenced him to the midterm of three years in
state prison. The trial court ordered defendant to pay a $240 restitution fine (§ 1202.4,
subd. (b)), a $200 base fine (§ 672) plus $520 in associated surcharges and assessments,
1 Further undesignated statutory references are to the Penal Code.
2 People v. Harvey (1979) 25 Cal.3d 754.
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a $40 court security fee (§ 1465.8), a $30 criminal conviction assessment (Gov. Code,
§ 70373), and $736 for the cost of the presentence investigation report (§ 1203.1, subd.
(b)). The court awarded defendant 62 actual days of presentence custody credit and 62
conduct days, for a total of 124 days of credit. (§ 4019.) Defendant appeals. He did not
obtain a certificate of probable cause. (§ 1237.5.)
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and asks us 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 of the opening brief. More than 30 days have elapsed, and we have
received no communication from defendant. We have undertaken an examination of the
entire record and find no arguable error that would result in a disposition more favorable
to defendant.
We do note one error. The trial court failed to impose a suspended parole
revocation restitution fine (§ 1202.45) in the same amount as the restitution fine
(§ 1202.4, subd. (b)). The fine under section 1202.45 is mandatory in every case where a
prison term includes a period of parole. (People v. Tillman (2000) 22 Cal.4th 300, 302;
People v. Rodriguez (2000) 80 Cal.App.4th 372, 375-378 (Rodriguez); People v. Terrell
(1999) 69 Cal.App.4th 1246, 1255-1256.) Where a fine under section 1202.4,
subdivision (b) has been imposed, the failure to impose a fine under section 1202.45
results in an unauthorized sentence, which we may correct in the first instance on appeal
(Rodriguez, supra, 80 Cal.App.4th at p. 378.)
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is modified to impose a $240 parole revocation fine, suspended
unless parole is revoked, pursuant to section 1202.45. The trial court is directed to
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prepare an amended abstract of judgment and forward a certified copy to the Department
of Corrections and Rehabilitation. As modified, the judgment is affirmed.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
MURRAY , J.
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