People v. Dizdar CA4/2

Filed 11/16/15 P. v. Dizdar CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063580
v. (Super.Ct.No. SWF1500569)
NICK LEWIS DIZDAR, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge.
Affirmed.
Michelle C. Zehner, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Nick Lewis Dizdar was required to register as a sex
offender pursuant to Penal Code1 section 290, as a result of a Louisiana rape conviction
in 2010. Defendant was charged with five different registration violations between
September 2014 and March 2015. Defendant entered into a plea agreement, pleading
guilty to a single offense (count 1) and admitting a strike prior (the Louisiana conviction).
The remaining counts were dismissed. The trial court sentenced defendant as a second-
striker on count 1, and imposed various fees and fines as part of the sentence. Defendant
has appealed; we affirm.
FACTS AND PROCEDURAL HISTORY
In 2010, defendant was convicted in Louisiana of one count of rape. As a
California resident, defendant was required to register as a sex offender because of the
Louisiana rape conviction. In March 2015, the Riverside County District Attorney filed a
felony complaint, alleging a variety of failure-to-register offenses:
Count 1 alleged that defendant had failed to register with the Riverside County
Sheriff’s Office in Lake Elsinore (within five days of coming into or changing residence
in any city, county or campus), on or about March 6, 2015, in violation of section 290,
subdivision (b). Count 2 alleged a second violation of section 290, subdivision (b), that
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
defendant had failed to register with the Riverside County Sheriff’s Office in Perris on or
about January 5, 2015. Count 3 asserted a violation of section 290.013, subdivision (a),
on or about September 2014, for failure to inform (in person and within five days) the
Summit County Sheriff’s Office in Ohio, that defendant had moved to California. Count
4 asserted a violation of section 290.015, subdivision (a), on or about February 6, 2015,
for failure to register in Perris within five days of release from incarceration, placement,
commitment or probation. Count 5 alleged a second violation of section 290.015,
subdivision (a), for failing to register in Lake Elsinore upon release from incarceration,
placement, commitment or probation. Defendant was also charged with a strike prior
pursuant to section 667, subdivisions (c) and (e)(1), and section 1170.12,
subdivision (c)(1).
At an early stage, on March 20, 2015, defendant agreed to waive the preliminary
hearing and to plead guilty to count 1 (§ 290, subd. (b), failure to register in Lake
Elsinore) and to admit the strike prior; the prosecutor agreed to dismiss the four
remaining counts. Defendant requested immediate sentencing. The court denied
probation. The stipulated prison sentence was 32 months, based on the low term of
16 months, doubled as a second-strike offense. The court calculated defendant’s custody
credits, imposed a restitution fine of $300, imposed and suspended a parole revocation
fine of $300, and ordered defendant to pay a court operations assessment fee of $40, and
a criminal conviction assessment fee of $30. Defendant was further ordered to supply
fingerprint and palm print cards, as well as blood and saliva samples. Defendant also
waived his right to an automatic appeal.
3
A few weeks later, in May 2015, defendant filed a petition for modification of
sentence. He argued that the punishment, 32 months imprisonment with a requirement to
serve at least 80 percent of that time, was excessive and unwarranted. He claimed that he
had missed the registration date in Perris by only one day, but that he was elderly and
diabetic, conditions that limited his “stability of movement.” In addition, he had no
transportation or vehicle to get to the Perris station to register. He alleged that he had
“read that a near 50% increase in elderly inmates over the last 15 years (since 2000) is
unwarranted, and as senior citizens, with a new and non-violent minor infraction, [he]
should only be given credit [for] time served,” and “be reinstated for registration only.”
The counts relating to defendant’s failure to comply with registration requirements in
Perris had been dismissed; defendant had pleaded guilty only to one count of failure to
register on time in Lake Elsinore. The trial court denied defendant’s motion for
modification of sentence.
A week or so later, still in May 2015, defendant filed a motion to recall his
sentence, and requested sentencing in absentia, citing section 1170.126. Defendant
argued that he should be resentenced pursuant to the Three Strikes Reform Act of 2012
(Proposition 36). Proposition 36 applies to persons sentenced to an indeterminate third-
strike term. Defendant received a determinate sentence of 32 months as a second-striker.
The record does not show any disposition of defendant’s petition to recall his sentence.
4
Defendant also filed a notice of appeal on May 14, 2015, asserting both that the
appeal was based on matters occurring after the plea, and that he challenged the validity
of the plea.2 In connection with the latter challenge, defendant requested a certificate of
probable cause. Defendant’s statement in support of his request for a certificate of
probable cause recited that “[o]nly the misdemeanor charge of ‘probably violation of the
existing restraining order’ in effect through 4-1-15 should be valid. Thus, dismissing the
charge of non-registration . . . which carried 32 months plus parole time. I was not on
any parole or probation . . . .” Defendant asserted that he had “contacted all counties (or
cities) required by the sex registration guidelines/notes.” He claimed that he had “called
San Jacinto—twice—and left messages to call [him] both times when [he] arrived to
Calif. in Jan 2015.” Defendant explained that the “[c]harge of non-registration is
‘invalid’ because [he] did indeed call/contact the San Jacinto P.D. (office where Hemet
Court—divorce hearing was scheduled) and left 2 messages . . . when in S. Cal. Hemet
area for Final Divorce Hearing in Jan. 4th [sic: 9th?]—delayed until March of 2015.” As
already noted, defendant was not convicted of failure to register in Hemet, Perris, or San
Jacinto. The trial court denied defendant’s request for a certificate of probable cause.
2 The notice of appeal bears two trial court case numbers, one of which is the
underlying criminal proceeding concerning defendant’s failure to register. The second
case number evidently refers to the imposition of a criminal domestic violence protective
order. Defendant’s notice of appeal raised no actual issues with respect to the protective
order. We treat the matter solely as an appeal from defendant’s criminal conviction for
failure to register.
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ANALYSIS
We appointed counsel to represent defendant on appeal. Counsel has filed a brief
under the authority of People v. Wende (1979) 25 Cal. 3d 436 and Anders v. California
(1967) 386 U.S. 738, setting forth a statement of the case and a brief summary of the
facts and procedural posture. Counsel has also requested this court review the entire
record in the case.
Defendant was granted leave to file a personal supplemental brief, which he has
not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have
reviewed the entire record independently, and have discovered no arguable issues.3
3 Appointed counsel suggested some areas of inquiry with respect to potentially
arguable issues. None has merit. They are:
1. Whether the trial court correctly calculated defendant’s sentence and fines.
(The sentence was stipulated, and the fines were appropriate.)
2. Whether the restraining order was properly issued in this case. (The restraining
order was apparently issued in a different case.)
3. Whether the trial court correctly denied defendant’s request for a certificate of
probable cause. (Defendant did not identify any issue related to the validity of his plea to
the charge of failure to register in Lake Elsinore; all his complaints related to the
dismissed charges or matters that were not charged.)
4. Whether the court correctly denied defendant’s petition for modification of
sentence. (The basis for the request related to a different count from the one for which
defendant was sentenced.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.
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