People v. Eberhardt CA5

Filed 4/8/14 P. v. Eberhardt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F067358 Plaintiff and Respondent, (Super. Ct. No. F12909074) v. OPINION LARRY BRADY EBERHARDT,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jon Kapetan, Judge. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Cornell, J., and Kane, J.

INTRODUCTION On November 7, 2012, a felony complaint was filed alleging that appellant, Larry Brady Eberhardt, committed a petty theft with a prior qualifying conviction to make the offense a felony in violation of Penal Code section 666.1 The complaint alleged a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)- (i) & 1170.12, subds. (a)-(d)) and three prior prison term enhancements. On February 25, 2013, the parties entered into a plea agreement. Appellant initialed and executed a felony advisement of rights, waiver and plea form acknowledging the terms of the plea agreement, the consequences of his plea, and waiving his constitutional rights pursuant to Boykin/Tahl.2 Under the agreement, appellant would admit the allegation and the prior serious felony conviction, receive a sentence of two years, doubled to four years pursuant to the three strikes law, and the remaining enhancements would be dismissed. The advisement form notified appellant that he could be “fined up to $10,000 and ordered to pay restitution in the minimum amount of $200, and up to $10,000.” The trial court established that appellant initialed and executed the plea form, had time to talk to his counsel, and agreed to the sentence of four years. Appellant indicated he understood everything set forth in the plea form. Appellant pled guilty to violating section 666 and admitted the prior serious felony conviction. The probation officer’s report recommended a restitution fine of $1,680 pursuant to section 1202.4, subdivision (b),3 a courtroom security fee of $40, an assessment fee of $30, and a fee of $296 for preparation of the probation report pursuant to section 1203.1b.