People v. Singer CA3 ( 2024 )

Filed 10/11/24 P. v. Singer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Modoc)
----
THE PEOPLE, C100418
Plaintiff and Respondent, (Super. Ct. Nos. F22050,
F23057)
v.
RYAN BUCHMAN SINGER,
Defendant and Appellant.
Appointed counsel for defendant Ryan Buchman Singer 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.) After examining the record, we shall correct a clerical
error in the judgment and otherwise affirm.
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FACTS AND HISTORY OF THE PROCEEDINGS
A. Firearm Possession Case
In March 2023, defendant was charged in Modoc County case No. F22050 (the
firearm possession case) with being a felon in possession of a firearm (Pen. Code,
§ 29800, subd. (a)(1); count one) (statutory section citations that follow are found in the
Penal Code unless otherwise stated); unlawful possession of ammunition by a felon
(§ 30305, subd. (a)(1); count two); two counts of being a convicted person having a
concealed firearm in a vehicle (§ 25400, subd. (a)(1); count three [revolver] & count four
[rifle]); driving while privilege suspended or revoked (Veh. Code, § 14601.1, subd. (a);
count five); and unlawfully driving a vehicle upon a highway at a speed greater than 65
miles per hour (Veh. Code, § 22349, subd. (a); count six).
In May 2023, defendant pleaded no contest to count one in exchange for two years
in state prison with execution of sentence suspended. Under the terms of the conditional
plea agreement, defendant would be placed on formal probation for two years with the
initial jail time for the probation to be credit for time served, and the remaining charges
would be dismissed at sentencing. The parties stipulated to the preliminary hearing
transcript, and police and probation reports as the factual basis for defendant’s plea. The
plea form also included the following: “Defendant stopped for speeding. Had firearms
in vehicle.” (Capitalization omitted.)
Defendant also entered a Cruz1 waiver, which permitted him to travel out of state
to attend to family matters and required him to check in with probation upon his release,
to report to probation on June 2, 2023, after returning to California, and to appear for
sentencing on June 27, 2023. If defendant failed to comply with the terms of the Cruz
waiver, he agreed his plea would convert to an “open plea” and that the court could
1 People v. Cruz (1988) 44 Cal.3d 1247.
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sentence him to the maximum sentence allowed by law. As part of the plea agreement,
defendant also agreed to a Johnson2 waiver of credits if he failed to appear as promised,
and agreed to waive extradition to California.
Defendant did not report to probation upon his release, did not check in with
probation on June 2, 2023, and failed to appear for sentencing on June 27, 2023. The
court issued a no-bail warrant for his arrest.
In June 2023, the probation department submitted a report and recommendation to
the court stating that during its presentence investigation, it determined defendant had
two or more prior felony convictions, making him presumptively ineligible for probation
absent an unusual case finding. Because defendant failed to abide by the court’s
directives to report for his presentence interview, and given the applicable court rules,
probation recommended against making an unusual case finding and suggested that
defendant was not a suitable candidate for probation, especially given a recent felony
evading conviction in March 2023 in Oregon.
At a hearing in December 2023, defendant claimed he had withdrawn his plea.
The court found defendant’s plea had not been withdrawn and requested a presentence
report from probation.
B. Failure to Appear Case
In the meantime, defendant was charged in December 2023 in Modoc County case
No. F23057 (the failure to appear case) with the failure to appear on his own
recognizance (§ 1320, subd. (b)) in the firearm possession case. An out-on-bail
enhancement was also alleged (§ 12022.1).
2 People v. Johnson (1978) 82 Cal.App.3d 183.
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C. Further Proceedings Related to Both Cases
In January 2024, the probation department submitted a report reiterating its
previous findings and recommendation against granting probation in the firearm
possession case. The report noted that in addition to defendant’s March 2023 felony
conviction in Oregon, defendant had also been convicted of felony assault and possessing
stolen property in Washington in November 2023. The department found no mitigating
factors and two circumstances in aggravation (Cal. Rules of Court, rule 4.421(b)(2),
(b)(3)): that defendant’s prior convictions as an adult were numerous and increasing in
seriousness and that he had served a prior prison term. The department recommended
continuing sentencing until defendant’s failure to appear case resolved.
At a hearing on January 16, 2024, defendant disputed whether he had entered a
Johnson credit waiver in the firearm possession case and offered to stipulate to two years
in prison in that case if the prosecution agreed to dismiss the failure to appear case.
At a continued hearing on January 25, 2024, the court found that defendant had
given a Johnson waiver in the firearm possession case and that under the terms of the
waiver, that defendant agreed to waive credit up until he failed to appear, but not up until
sentencing. The prosecutor agreed that if defendant pleaded to the failure to appear
offense, she would not object to dismissing the on-bail enhancement or running the term
concurrent to the sentence imposed in the firearm possession case.
Thereafter, defendant pleaded no contest to the failure to appear offense, executing
a written plea form stipulating to two years in state prison, concurrent to the sentence in
the firearm possession case. The parties stipulated to various court records as the factual
basis for the plea, and the court accepted his plea.
The trial court sentenced defendant to state prison for the midterm of two years in
the firearm possession case, and a concurrent midterm of two years in the failure to
appear case. The on-bail enhancement in the failure to appear case was dismissed. In the
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firearm possession case, the court imposed a $200 restitution fine (§ 1202.4) and a $200
parole revocation restitution fine, which was stayed pending successful completion of
parole or post-release community supervision. The court awarded defendant 59 actual
days and 58 conduct days for a total of 117 days of credit in each case. Defendant timely
appealed in both cases without a certificate of probable cause.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.) Counsel advised
defendant of the right to file a supplemental brief within 30 days of the date of the filing
of the opening brief. More than 30 days have elapsed, and we have received no
communication from defendant.
Having examined the entire record, it appears the trial court failed to dismiss
counts two through six in the firearm possession case as contemplated by the parties’ plea
agreement. Although the prosecutor indicated during the change of plea hearing that the
remaining counts in the firearm possession case would be dismissed at the sentencing
hearing, neither counsel nor the court addressed counts two through six at sentencing, and
neither party brought dismissal of the charges to the court’s attention. Under the
circumstances, it appears the failure to dismiss the remaining counts in the firearm
possession case was an inadvertent clerical error rather than an exercise of judicial
discretion. Therefore, the error may be corrected on appeal. (In re Candelario (1970)
3 Cal.3d 702, 705-706 [clerical error not involving exercise of the court’s judicial
discretion subject to correction on appeal]; People v. Segura (2008) 44 Cal.4th 921, 930-
931 [trial court bound by terms of plea agreement it accepts].)
Accordingly, we shall modify the judgment to dismiss counts two through six in
the firearm possession case as contemplated by the parties’ plea agreement. Because the
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abstract of judgment reflects only defendant’s no contest plea to count one in that case
(being a felon in possession of a firearm), and does not reference counts two through six,
the abstract of judgment need not be amended.
We find no other arguable error that would result in a disposition more favorable
to defendant.
DISPOSITION
The judgment is modified to dismiss counts two through six in case No. F22050.
As so modified, the judgment is affirmed.
HULL, Acting P. J.
We concur:
DUARTE, J.
RENNER, J.
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