People v. Ulmer CA1/2

Filed 2/14/24 P. v. Ulmer CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A167640 v. KALUB ULMER, (Humboldt County Super. Ct. No. CR2202629) Defendant and Appellant.

Kalub Ulmer appeals from the judgment entered against him after a negotiated plea, challenging only the trial court’s imposition of a restitution fine that exceeds the $300 statutory minimum. (Pen. Code, § 1202.4, subd. (b)(1).1) Because there is no substantial evidence to support the trial court’s decision to impose a restitution fine in the amount of $1,600, we will reverse and remand for the trial court to impose the statutory minimum fine. FACTUAL AND PROCEDURAL BACKGROUND We draw our summary of the underlying facts from the probation report. In July 2022, Ulmer was walking down the street carrying a crowbar and a skateboard when he was approached by a police officer who recognized him based on previous contacts, and who was aware of a law enforcement

1 All statutory references are to the Penal Code unless otherwise

stated.

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bulletin advising that Ulmer was a parolee possibly in possession of a firearm. When the officer attempted to detain Ulmer, a struggle ensued in which Ulmer broke free. The officer regained control of Ulmer and handcuffed him and, with the help of a second officer, brought Ulmer to a patrol vehicle. On the way to the car, Ulmer head-butted the first officer and began to pull away. After a brief struggle, the officers gained control of Ulmer. A search of Ulmer incident to the arrest recovered “a live 9mm round and a live .44 round on his person and in his backpack,” a 4.5 inch fixed-blade knife in his right back pants pocket, and three methamphetamine pipes. Ulmer was charged in a felony complaint with two felony counts (unlawful possession of ammunition [§ 30305, subd. (a)(1)] and carrying a dirk or dagger [§ 21310]) and two misdemeanor counts (resisting or obstructing a public officer [§ 148, subd. (a)(1)] and possession of a smoking device [Health & Saf. Code, § 11364, subd. (a)]). The complaint also alleged two prior strike convictions and several aggravating factors. Ulmer was remanded into custody in November 2022. At a hearing in February 2023, Ulmer pleaded guilty to all four counts and admitted the two strikes as part of a plea agreement under which he would be sentenced to 16 months in state prison. The court accepted the plea, and then granted Ulmer’s Romero motion to strike the two prior strikes.2 At the sentencing hearing in March 2023, the court sentenced Ulmer to the low term of 16 months for each of the felony counts, to be served concurrently, with the one-year misdemeanor terms to also run concurrently. Ulmer received a total of 269 days of custody credit. The court imposed a restitution fine under section 1202.4, subdivision (b), in the amount of $1,600,