People v. Strock CA1/1

Filed 5/30/14 P. v. Strock CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A138587 v. JACOB ROBERT STROCK, (Contra Costa County Super. Ct. Nos. 4-167137-9 & 5-120768-7) Defendant and Appellant.

Defendant Jacob Robert Strock appeals from a conviction of auto theft (Veh. Code, § 10851, subd. (a)) with a prior auto theft related felony conviction (Pen. Code, 1 § 666.5). He raises only one issue, arguing the court erred when it imposed a restitution fine and a parole revocation restitution fine in the amount of $960 each. Because those fines had been set at $240 each when sentence was imposed, but execution suspended, defendant argues that the court, upon revoking probation and sentencing defendant to prison, was not authorized to increase those fines. The Attorney General agrees that the amount of the fines was unauthorized. We, therefore, modify the amounts of the fines imposed and order the abstract of judgment amended accordingly. The judgment, as modified, is affirmed. STATEMENT OF THE CASE AND THE FACTS On February 28, 2010, the complaining witness, a 17-year-old male, went to Harbor Park in Antioch to meet defendant’s girlfriend, whom he had arranged to meet

1 Unless otherwise indicated, further statutory references are to the Penal Code.

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there at 11 p.m. Defendant noticed his girlfriend had received several text messages from the complaining witness and decided to have words with him. Defendant and a codefendant approached the complaining witness and one of them said, “Do you have anything on you? A phone?” When the complaining witness said he did have a phone, defendant or his codefendant said, “Give me all you got.” Both defendant and the codefendant kicked and punched the complaining witness 10 to 12 times. They took his cell phone. As they left one of them said, “Don’t call the police.” On September 9, 2010, the Contra Costa County District Attorney filed a felony complaint charging defendant with one count of second degree robbery (§§ 211, 212.5, subd. (c)) in Docket No. 4-167137-9. The complaint further alleged a great bodily injury enhancement (§ 12022.7, subd. (a)) and an enhancement alleging the offense was committed while on bail or on own recognizance (§ 12022.1). On September 14, 2010, an amended complaint was filed which added the codefendant. On October 12, 2010, defendant entered a plea of no contest to robbery (count one), an additional amended “back-up” count two, felony grand theft person (§ 487, subd. (c)),2 and amended count three, unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), from an earlier filed docket). Judge Brian Haynes admitted defendant to three years’ felony probation on the condition that he serve 365 days in jail and pay a $300 restitution fine and a $300 probation revocation restitution fine (suspended). Upon successful completion of probation, the robbery count was to be dismissed nunc pro tunc. The enhancements were dismissed, and defendant waived his appellate rights. Defendant thereafter admitted allegations of four petitions to revoke probation, and probation was reinstated each time. On April 9, 2013, probation was reinstated on