P. v. Flaata CA2/6

Filed 3/25/13 P. v. Flaata CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B239300 (Super. Ct. No. F466777) Plaintiff and Respondent, (San Luis Obispo County)

v.

DOUGLAS RAY FLAATA,

Defendant and Appellant.

Douglas Ray Flaata appeals a judgment entered following his nolo contendere plea to one count of elder abuse, with an admission that his victim suffered great bodily injury. (Pen. Code, § 368, subd. (b)(1), (2).)1 We conclude that the trial court properly awarded Flaata only 15 percent presentence conduct credit, and affirm. (§§ 2933.1, 667.5, subd. (c)(8).) FACTS AND PROCEDURAL HISTORY On October 23, 2011, Flaata assaulted his longtime girlfriend E.W. According to the probation report, Flaata choked E.W. into unconsciousness, tore "clumps" of hair from her head, hit her in the face, kicked her in the head, and struck her with a chair and his fist. E.W. was airlifted to a hospital, where she spent two

1 All further statutory references are to the Penal Code unless stated otherwise.

days recovering from her injuries, including cracked ribs. At the time, E.W. was 74 years old and had been assaulted by Flaata on prior occasions. By felony complaint, the prosecutor charged Flaata with elder abuse (count 1), making criminal threats (count 2), and inflicting corporal injury upon a spouse or cohabitant (count 3). (§§ 368, subd. (b)(1), 422, 273.5, subd. (a).) The prosecutor also alleged that E.W. suffered great bodily injury, that Flaata personally inflicted great bodily injury upon E.W., and that Flaata served a prior prison term. (§§ 368, subd. (b)(2), 12022.7, 667.5, subd. (b).)2 On November 21, 2011, Flaata waived his constitutional rights and right to a preliminary examination, and pleaded nolo contendere to elder abuse (count 1), and admitted that E.W. suffered great bodily injury. (§ 368, subd. (b)(1), (2).) The plea agreement provided for a seven-year prison term and dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758. During the plea colloquy, the trial court advised Flaata that he was "entering a plea of no-contest to count 1 which requires the [district attorney] to prove that the crime is an act that you committed under circumstances likely to produce great bodily harm or death, that you inflicted some sort of pain, mental suffering on this person whose age is over 70 years."3 Flaata responded that he understood the charges to which he was pleading. On January 30, 2012, the trial court sentenced Flaata to seven years imprisonment, including two years for elder abuse and five years for the great bodily injury allegation. (§ 368, subd. (b)(1), (2)(B).) The court imposed a $1,400 restitution fine, and a $1,400 parole revocation restitution fine (stayed). (§§ 1202.4, subd. (b), 1202.45.) It awarded Flaata 100 days of actual presentence custody credit 2 References to section 12022.7 are to the version in effect prior to repeal effective January 1, 2012. 3 The felony complaint charged that Flaata "knowingly and willfully cause[d] and permit[ted]" the victim to suffer "and inflicted thereon, unjustifiable physical pain and mental suffering." 2