People v. Brockway CA1/2

Filed 4/29/14 P. v. Brockway CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A138966 v. CHRISTOPHER RYAN BROCKWAY, (Mendocino County Super. Ct. Nos. SCUKCRCR 12-20365 Defendant and Appellant. & SCUKCRCR 13-70875)

Christopher Ryan Brockway appeals from a judgment based on his plea of no contest to theft of an elder and failure to appear. His court-appointed attorney has filed a brief raising no legal issues and requesting this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. STATEMENT OF THE CASE On February 1, 2012, the Mendocino County District Attorney filed a complaint in Mendocino County Superior Court case No. 12-20365 charging appellant with theft or embezzlement of an elder (Pen. Code, § 368, subd. (d)(1)),1 together with three counts of forging the signature of the holder of an access card (§ 484f, subd. (b)). Bond was set at $75,000, but appellant secured his release on March 27, 2012, and the case continued in pre-preliminary hearing status. On July 10, 2012, appellant failed to appear and on November 27 of that year he was subsequently charged in Mendocino County Superior

1 All subsequent statutory references are to the Penal Code

1

Court case No. 13-70875 with that offense (§ 1320.5) and with a related enhancement for commission of a felony while on bail (§ 12022.1). On February 26, 2013, pursuant to a negotiated agreement, appellant entered no contest pleas to theft of an elder and failure to appear. The agreement specified the midterm of two years for the failure to appear, a consecutive two-year term for the offense-while-on-bail enhancement, and a consecutive one-third the midterm of one year on the theft of an elder, for a total sentence of five years. The remaining charges were then dismissed. At the sentencing hearing conducted on April 12, 2013, the court granted appellant’s request for a “split” sentence under section 1170, subdivision (h)(5)(B)(i), which permits the court to commit a defendant “[f]or a term as determined in accordance with the applicable sentencing law, but suspend execution of a concluding portion of the term selected in the court’s discretion, during which time the defendant shall be supervised by the county probation officer . . . .” The court imposed the agreed-upon five-year term by declaring case No. 13-70875 the principle case, imposing the two-year midterm on the failure to appear, with a consecutive two years for the offense while on bail enhancement, and then imposing a consecutive one-third the midterm of one year on the theft of an elder charged in case No. 12-20365. The court ordered appellant to serve two and one-half years on the principle case, with the following 18 months to be served on mandatory supervised release, 80 days on the subordinate term, and thereafter 285 days of supervised release. Credits were awarded as to each case, as well as fines and restitution, including an award for direct restitution to the victim in the amount of $2,362.43. This timely appeal from the judgment insofar as it relates to sentencing was filed on June 7, 2013. FACTS According to the report and recommendation of the probation officer filed with the court on April 12, 2013, appellant lived in Little River, Mendocino County, with his grandmother, Sandra Wilson, who was live-in caretaker for William Westfall Sr., then