People v. Schumacher CA3

Filed 5/16/16 P. v. Schumacher 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C079599
Plaintiff and Respondent, (Super. Ct. No. CM042326)
v.
MAX JUSTIN SCHUMACHER,
Defendant and Appellant.
Appointed counsel for defendant Max Justin Schumacher 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 remand the matter to the trial court with
directions to provide a detailed recitation of all fees, fines, penalties, and assessments
imposed, and the statutes under which they are imposed, and to modify the May 21, 2015
minute order and the May 21, 2015 terms and conditions of formal probation to correctly
reflect that information. In all other respects, we will affirm the judgment.
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I
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal. 4th 106, 110, 123-124.)
On January 18, 2015, law enforcement officers responded to a complaint of a
verbal dispute between defendant and his father. Defendant was reportedly in a trailer
and possibly armed with a large knife and a pellet gun. When officers arrived, defendant
was ordered out of the trailer and searched. Officers found defendant in possession of a
pocketknife, numerous hypodermic needle caps, and one .22-caliber round. A second
.22-caliber round was found inside the trailer. Defendant’s speech and movement were
slow, his pupils restricted, and his eyelids droopy. He had multiple injection sites on his
inner arms. Defendant told officers he used heroin the night before, but only because he
was out of his prescription methadone. Defendant performed “poorly” during field
sobriety tests and was arrested and taken into custody.
Defendant was charged by criminal complaint with unlawful possession of
ammunition by a felon (Pen. Code § 30305, subd. (a)(1))1 and being under the influence
of a controlled substance, a misdemeanor (Health & Saf. Code § 11550, subd. (a)).
On February 26, 2015, defendant entered a negotiated plea of no contest to both
counts in exchange for no immediate state prison. He also admitted that, as a result of the
plea, he was in violation of probation in unrelated case numbers SCR87855, SCR88476,
and SCR91340, each of which the People agreed to dismiss with a waiver pursuant to
People v. Harvey (1979) 25 Cal. 3d 754. Defendant stipulated to a factual basis for the
plea.
At the May 21, 2015 sentencing hearing, the trial court found there was a factual
basis for defendant’s plea, placed him on three years of formal probation subject to
1 Unspecified statutory references are to the Penal Code.
2
specified terms and conditions, imposed fees and fines, and ordered him to serve 90 days
in county jail with credit for six days served.2 The court terminated probation as
unsuccessful in case numbers SCR87855, SCR88476, and SCR91340, and ordered time
served in all three cases.
Defendant filed a timely notice of appeal. He did not obtain a certificate of
probable cause.
II
Counsel filed an opening brief that sets 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
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.
The court’s oral pronouncement of judgment is not consistent with either the
minute order or the terms and conditions of formal probation, both dated May 21, 2015.
In particular, the court imposed fees and fines using a unique, cumulative fine and fee
imposition regimen, purportedly applying section 672, which provides for a separate fine
for violations whose statutes do not include fine amounts. Because section 672 is not a
vehicle for imposing all mandatory and permissive fines and fees which arise from
separate statutes, this extra-legal process is not in compliance with People v. High (2004)
2 Defendant’s opening brief states, in a footnote, as follows: “On November 23,
2015, the Butte County Superior Court responded to [defendant’s] Penal Code section
1237.1 letter with a document entitled ‘Response to Communication’. Judge Robert A.
Glusman stated in this document that [defendant] was awarded 6 days custody credits
under section 4019. A Proof of Service is attached to the ‘Response to Communication’
indicating that this Court was served with the response.” We find nothing in the record
regarding either a “Penal Code section 1237.1 letter” sent by defendant or the trial court’s
response thereto, and the record citation provided by defendant does not assist us in that
regard.
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119 Cal. App. 4th 1192. We therefore remand the matter to the trial court to provide a
“detailed recitation of all the fees, fines and penalties on the record,” including their
amounts and statutory bases (id. at p. 1200), and to modify the May 21, 2015 minute
order and terms and conditions of formal probation to accurately reflect that information.
Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
DISPOSITION
The matter is remanded to the trial court for further proceedings consistent with
this opinion. In all other respects, the judgment is affirmed.
NICHOLSON , J.
We concur:
RAYE , P. J.
HULL , J.
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