People v. Clopp CA3

Filed 11/18/20 P. v. Clopp CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C089877

Plaintiff and Respondent, (Super. Ct. No. 18CR001649)

v.

DAVID EARL CLOPP,

Defendant and Appellant.

After defendant David Earl Clopp pled guilty to carrying a dirk or dagger, and admitted two prior prison terms, the trial court imposed a sentence of five-years imprisonment and imposed various costs, but suspended execution of the sentence, and ordered defendant placed on formal probation. Later, after defendant admitted that he violated probation, the trial court terminated probation, triggering execution of the suspended sentence. On appeal, defendant contends: (1) we must strike his prior prison term enhancements because of changes to California law while this appeal was pending; (2) the trial court violated due process principles by imposing costs without first

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determining defendant’s ability to pay; and (3) ineffective assistance of counsel in connection with the imposition of a $1500 restitution fine. We agree with defendant’s first contention, disagree with his second contention, and deem moot his third contention, because we reduce the unauthorized amount of the restitution fine. Further, we shall correct other unauthorized aspects of the sentence (concerning costs). Accordingly, after striking the two prior prison term enhancements, and correcting unauthorized costs imposed, we will affirm the judgment as modified. I. BACKGROUND The underlying facts of defendant’s crime of conviction are not pertinent to the issues raised on appeal. Simply put, in August 2018, and pursuant to a written plea agreement, defendant pled guilty to carrying a dirk or dagger in violation of Penal Code section 21310.1 Defendant admitted that he served two prior prison terms within the meaning (at that time) of section 667.5, subdivision (b), arising out of convictions for burglary (§ 459) and making criminal threats (§ 422). In exchange, a prior strike allegation (§ 1170.12) was dismissed. At sentencing, the trial court imposed but suspended execution of a term of five years in state prison, consisting of: the upper term of three years for the offense, and one year for each of defendant’s two prior prison terms. The trial court placed defendant on formal probation for a period of five years. Regarding costs, the trial court stated it was adopting the terms and conditions of a probation order prepared for the hearing. That order provided for a restitution fine (§ 1202.4) in the amount of $600, a probation revocation fine of $600 (§ 1202.44), stayed pending successful completion of probation, a $40 court operations assessment (§ 1465.8), and a $30 conviction assessment (Gov. Code, § 70373).