People v. Berner CA6

Filed 2/10/14 P. v. Berner CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040079 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1356190)

v.

CHRISTOPHER DEWEY BERNER,

Defendant and Appellant.

I. INTRODUCTION Defendant Christopher Dewey Berner pleaded no contest to failing to update his sex offender registration within five working days of his birthday. (Pen. Code, §290.012, subd. (a).)1 In accordance with the plea agreement, the trial court suspended imposition of sentence, placed defendant on probation on the condition that he serve 90 days in the county jail, and stayed the jail term while defendant was on electronic monitoring. Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.

1 All statutory references hereafter are to the Penal Code unless otherwise indicated.

Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, at page 110, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” II. FACTUAL AND PROCEDURAL BACKGROUND In this case, no preliminary hearing was conducted and the waived referral report submitted by the probation officer did not include a summary of the facts of the instant offense. Defendant was required to register as a sex offender pursuant to section 290 based on a prior felony conviction for possession of child pornography in violation of section 311.11, subdivision (a). The felony complaint filed on May 3, 2013, charged defendant with one count of willfully failing to update his sex offender registration within five working days of his birthday. (§290.012, subd. (a).) On June 4, 2013, defendant entered into a plea agreement whereby he pleaded no contest to the charge of violating section 290.12, subdivision (a) in exchange for three years of probation, 90 days on the electronic monitoring program, and a continuing obligation to register. During the hearing held on August 9, 2013, the trial court denied defendant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 and also denied defendant’s motion to withdraw his plea. The sentencing hearing was also held on August 9, 2013. The trial court suspended imposition of sentence, placed defendant on probation for three years on the condition that he serve 90 days in the county jail, and stayed the jail term while defendant was on electronic monitoring. Due to defendant’s economic status, the trial court stated on the record that the court declined to impose a restitution fine (§ 1202.4, subd. (b)(2)) and suspended a $240 parole revocation restitution fine (§ 1202.45). The minute order of