People v. Tophan CA3

Filed 12/9/20 P. v. Tophan CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C091006

Plaintiff and Respondent, (Super. Ct. Nos. 18F7096, 18F3877) v.

ROBERT DEAN TOPHAN,

Defendant and Appellant.

Appointed counsel for defendant Robert Dean Tophan filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on his appeal from judgment entered following the revocation and reinstatement of his probation. (People v. Wende (1979) 25 Cal.3d 436.) Our review of the record has disclosed certain fees that cannot be conditions of probation are erroneously listed as such in defendant’s sentencing order. Further, the court failed to stay defendant’s probation revocation restitution fine. We will modify the judgment to

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correct these errors. Finding no additional errors that are favorable to defendant, we will affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND Defendant pleaded no contest to one count of maintaining a place for selling or using controlled substances (Health & Saf. Code, § 11366) in case No 18F3877 and one count of illegal possession of ammunition (Pen. Code, § 30305)1 in case No. 18F7096. In exchange, the remaining count and an infraction were dismissed. On February 19, 2019, the trial court sentenced defendant to three years’ formal probation with 120 days in county jail as a condition thereof. He was awarded 38 days actual credit plus 38 days conduct credit for a total of 76 days custody credit. The court further ordered that defendant pay two $40 court operations fees totaling $80 (§ 1465.8), two $30 conviction fees totaling $60 (Gov. Code, § 70373), a $300 restitution fine (§ 1202.4, subd. (b)), a $300 probation revocation restitution fine (§ 1202.44), which the court stated would be “suspended once probation is revoked.” The court also imposed $780 in fines and fees, which it failed to otherwise describe at the sentencing hearing, but which were delineated in the sentencing minute order. Finally, the court ordered defendant pay up to $75 per month for probation services, a $151 booking fee, and $250 for the presentence investigation report. On August 19, 2019, the People filed a petition to revoke defendant’s probation alleging defendant had violated the law by obstructing an officer. (§ 148, subd. (a)(1).) At the contested hearing on October 3, 2019, the People presented the testimony of Shasta County Probation Officer Kurtis Capella, who confirmed that one of defendant’s conditions of probation was to obey all laws, and Redding Police Department Officer David Chapman, who testified that defendant lied to him about where he lived, causing