People v. Perez CA3

Filed 10/28/13 P. v. Perez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C070622

Plaintiff and Respondent, (Super. Ct. No. SF116784A)

v.

MARIO PEREZ,

Defendant and Appellant.

This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). On January 25, 2011, defendant Mario Perez entered the Dillard‟s store in Stockton and took $192 worth of merchandise without paying. Defendant had been convicted of petty theft with a prior and served periods of incarceration in 2003, 2008, and 2010.

1

On February 17, 2011, defendant entered a plea of guilty to violation of Penal Code section 6661 and admitted three priors in exchange for five years‟ probation, subject to conditions including 12 months in jail. Sentencing was deferred to permit defendant to complete an academic semester; defendant was warned that if he failed to make required court appearances he faced a maximum of three years in prison. Defendant was present for sentencing in May 2011, July 2011, and August 2011, and each time sentencing was continued. At the continued sentencing hearing on September 15, 2011, defendant failed to appear and a bench warrant was issued. On September 16, 2011, the prosecutor filed an amended complaint, adding a charge of felony failure to appear (FTA). (§ 1320, subd. (b); count 2.) On January 19, 2012, defendant appeared. Defendant provided no justification for his absence at the September 2011 hearing and for not appearing until January 2012, and was sentenced consistent with his earlier plea. Both the minute order and the clerk‟s minutes reflect that defendant entered a plea of guilty to FTA. The reporter‟s transcript, however, does not reflect that defendant ever orally entered a plea to the FTA charge. The trial court sentenced defendant to the upper term of three years for petty theft with priors, with 16 months to be served in county jail and the remaining 20 months under mandatory supervision (§ 1170, subd. (h)(5)(B)), and to time served on the FTA (nine days). The court ordered defendant to pay $334 in fines and a $240 probation revocation restitution fine, suspended upon successful completion of mandatory supervision. The court orally ordered $334 in fines but did not break down the fines. The minute order for January 19, 2012, reflects a $240 restitution fine, a $24 administrative surcharge for the restitution fine, a $30 conviction assessment, and a $40 court security fee. The court orally ordered a $240 probation revocation restitution fine, but this fine does not appear in the minute