People v. Bagnaschi CA3 ( 2016 )

Filed 6/15/16 P. v. Bagnaschi 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C079630
Plaintiff and Respondent, (Super. Ct. No. 11F1493,
12F4854, 14F3223)
v.
CALLI MARIE BAGNASCHI,
Defendant and Appellant.
Appointed counsel for defendant Calli Marie Bagnaschi has asked this court to
review the record to determine whether there are any arguable issues on appeal. (People
v. Wende (1979) 25 Cal. 3d 436.) Finding no arguable error that would result in a
disposition more favorable to defendant, we will affirm the judgment.
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I
Case No. 11F1493
On multiple occasions in June 2010, defendant stole items from Alan Cochran’s
apartment, including X-Box 360 games, prescription pills, and at least $1,500 in cash.
Defendant also took Cochran’s bank card and used it to withdraw money from an ATM.
On March 15, 2011, defendant was charged by criminal complaint with grand theft
of personal property, a felony. (Pen. Code, § 487, subd. (a).)1
Case No. 12F4854
On June 28, 2012, defendant, who was driving a stolen car, led police on a high-
speed chase. When defendant finally stopped the car, she initially failed to comply with
the orders of the arresting officers.
On July 24, 2012, defendant was charged by criminal complaint with receiving
stolen property obtained by extortion, a felony (§ 496, subd. (a)--count 1), unlawful
driving or taking of a vehicle, a felony (Veh. Code, § 10851, subd. (a)--count 2), evading
an officer with disregard for public safety, a felony (Veh. Code, § 2800.2--count 3), and
resisting, obstructing, or delaying an officer or EMT, a misdemeanor (§ 148, subd. (a)(1)-
-count 4). The complaint alleged defendant committed counts 1, 2, and 3 while released
on bail or her own recognizance (OR). (§ 12022.1.)
On October 10, 2013, defendant entered a negotiated plea in case Nos. 11F1493
and 12F4854 whereby she pleaded guilty as charged in case No. 11F1493, and pleaded
guilty to counts 2 and 3 and admitted the on-bail enhancement in case No. 12F4854, in
exchange for a grant of formal probation and dismissal with a Harvey2 waiver of the
1 Undesignated statutory references are to the Penal Code.
2 People v. Harvey (1979) 25 Cal. 3d 754.
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balance of charges in case No. 12F4854 and all charges and allegations pending against
her in case Nos. 12F2089, 12F6905, and 12F4552.
On December 4, 2013, the trial court suspended imposition of sentence and placed
defendant on three years of formal probation subject to specified terms and conditions.
January 29, 2014, Violations of Probation
On January 29, 2014, the probation department filed petitions for revocation of
probation in case Nos. 11F1493 and 12F4854 alleging defendant failed to report to
probation immediately after her release from custody on December 5, 2013.
Case No. 14F3223
On April 3, 2014, Shasta County Sheriff’s Deputy Tim Estes observed defendant
drive past his patrol vehicle and pull up in front of a house. Several people got out of the
car and ran from the vehicle toward the house.
Knowing defendant had active warrants for her arrest, Deputy Estes positioned his
patrol car behind defendant’s vehicle and shined his spotlight on her car. Defendant, who
was by that time standing in front of her car, acknowledged having active warrants for
her arrest and stated she did not have a valid driver’s license. When asked whether there
was anything illegal inside the car, defendant responded, “There’s some shit in the
vehicle.” Defendant told Deputy the “shit” was hers and that it was located in a backpack
inside the car. Defendant was handcuffed and placed in the patrol car.
Deputy Estes walked his police K-9, Blitz, around defendant’s car. Blitz alerted at
the rear driver’s side passenger door. Deputy Estes opened the door and found a
backpack on the seat. Blitz alerted on the backpack. A search of the backpack revealed
clear Ziploc bags containing methamphetamine, a larger clear plastic bag containing a
straw and folded paper, a scale with methamphetamine residue on it, and pay/owe sheets.
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Once the search was complete, Deputy Estes spoke with defendant, who admitted
she possessed the methamphetamine for the sole purpose of selling it so that she could
raise money to move to Eureka to live near her daughter.
On July 30, 2014, defendant was charged by complaint deemed an information
with felony possession of methamphetamine, a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)--count 1), felony possession for sale of methamphetamine, a controlled
substance (Health & Saf. Code, § 11378--count 2), felony sale or transportation of
methamphetamine, a controlled substance (Health & Saf. Code, § 11379, subd. (a)--count
3), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)--count 4).
Count 1 was subsequently reduced to a misdemeanor, and the information was
amended to charge defendant with felony possession for sale of methamphetamine, a
controlled substance (Health & Saf. Code, § 11378--count 1), felony sale or
transportation of methamphetamine, a controlled substance (Health & Saf. Code,
§ 11379, subd. (a)--count 2), and misdemeanor driving without a license (Veh. Code,
§ 12500, subd. (a)--count 3).
May 12, 2015, Violations of Probation
On May 12, 2015, the prosecution filed a second petition for revocation of
probation alleging defendant violated probation in case Nos. 12F4854 and 11F1493 by
committing the new offenses charged in case No. 14F3223.
Trial, Judgment, and Sentencing
The matter was tried to a jury. At the close of evidence, defendant filed a motion
for judgment of acquittal on counts 1 and 2 pursuant to section 1118.1. The trial court
denied the motion.
The jury found defendant guilty of all three counts. The trial court sustained the
May 12, 2015, petitions for revocation of probation in case Nos. 11F1493 and 12F4584
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and revoked probation in both cases. The January 29, 2014, petition for revocation of
probation was dismissed in the interest of justice.
The trial court imposed an aggregate sentence of six years four months as follows:
In case No. 12F4584, the court imposed the middle term of two years on count 2,
plus two years for the on-bail enhancement, and a consecutive eight-month term (one-
third the middle term) for count 3.
In case No. 11F1493, the court imposed a consecutive eight-month term (one-third
the middle term).
In case No. 14F3223, the court imposed a term of one year (one-third the middle
term) on count 2, plus a concurrent term of six months on count 3 (a misdemeanor), and a
term of eight months (one-third the middle term) on count 1, stayed pursuant to section
654.
The court stayed execution of the sentence, and revoked, reinstated, and extended
formal probation in case Nos. 11F1493 and 12F4584 to expire on June 10, 2018, subject
to specified terms and conditions, including payment of fees and fines as follows:3 a
$600 restitution fine; a $600 probation revocation restitution fine, stayed pending
successful completion of probation; a “$780 criminal fine plus penalty assessments and
other mandatory--including penalty assessments and the penalty . . . the other court
assessments at the rate of 40 [sic], plus a $40 fee for collections, . . . a criminal laboratory
analysis fee of [$195] . . . a court operations assessment fee of $2,200 . . . a criminal
conviction assessment fee of [$150].” The court also ordered defendant to pay the
following “according to her financial ability”: “the cost of probation services not to
exceed $75 a month, a booking fee of $151, pay a fee of $250 . . . for preparation of the
presentence investigation report pursuant to Penal Code Section 1203.1[b, subdivision]
3 The parties waived recitation of the statutory bases for the fees and fines imposed.
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(a).” The court found defendant did not have an ability to pay $2,040 in attorney fees and
set the matter for a second ability to pay hearing on January 12, 2016.
The court’s minute order imposes the following fees and fines: a $600 restitution
fine (§ 1202.4, subd. (b)); a $600 probation revocation restitution fine, stayed pending
successful completion of probation (§ 1202.44); an aggregate fine of $780, which
includes a $200 fine (§ 672), plus a $200 state penalty assessment (§ 1464, subd. (a)), a
$20 DNA penalty assessment (Gov. Code, § 76104.6), an $80 DNA penalty assessment
(Gov. Code, § 76104.7), a $100 state court facilities construction fee (Gov. Code,
§ 70372, subd. (a)(1)), a $140 county penalty assessment (Gov. Code, § 76000, subd.
(a)(1)), and a $40 state criminal fine surcharge (§ 1465.7, subd. (a)); an aggregate fee of
$195, which includes a $50 criminal laboratory analysis fee (Health & Saf. Code,
§ 11372.5), $50 (§ 1464), $10 (§ 1465.7), $5 (Gov. Code, § 76104.6), $20 (Gov. Code,
§ 76104.7), $25 (Gov. Code, § 70372, subd. (a)(1)), and $35 (Gov. Code, § 76000, subd.
(a)(1)); a $120 court operations assessment fee (§ 1465.8, subd. (a)(1)); and a $90
criminal conviction assessment fee (Gov. Code, § 70373). The minute order also
imposes the cost of probation services not to exceed $75 per month; a $151 booking fee;
a $250 fee for preparation of the presentence investigation report (§ 1203.1b, subd. (a)),
and notes an ability to pay hearing scheduled for January 12, 2016, regarding attorney
fees of $2,040.
Defendant filed timely notices of appeal. She neither requested nor obtained a
certificate of probable cause.
II
Counsel filed an opening brief that sets forth the facts of the case and requests that
we review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal. 3d 436.) Defendant was advised by counsel of the right
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to file a supplemental brief within 30 days of the date of filing of the opening brief. More
than 30 days elapsed and we received no communication from defendant.
We note that the trial court erred in imposing a court operations fee in the amount
of $2,200 pursuant to section 1465.8, subdivision (a)(1), which provides that “an
assessment of forty dollars ($40) shall be imposed on every conviction for a criminal
offense, including a traffic offense . . . involving a violation of a section of the Vehicle
Code.” Defendant was convicted of two felonies and one misdemeanor, and thus subject
to a court operations fee of $120. However, we need not exercise our inherent authority
to correct an otherwise unauthorized sentence (People v. Turner (2002) 96 Cal. App. 4th
1409, 1413-1415) because the court’s minute order imposes the correct fee of $120.
Similarly, the trial court erred in imposing a criminal conviction assessment fee in
the amount of $150 pursuant to Government Code section 70373, which provides that “an
assessment shall be imposed on every conviction for a criminal offense . . . involving a
violation of a section of the Vehicle Code . . . in the amount of thirty dollars ($30) for
each misdemeanor or felony.” Again, defendant was convicted of two felonies and one
misdemeanor, and was therefore subject to a criminal conviction assessment fee of $90.
However, again, we need not correct the unauthorized sentence, as the court’s minute
order accurately imposes the correct fee of $90.
Having undertaken an examination of the entire record, we find no other arguable
error that would result in a disposition more favorable to defendant.
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DISPOSITION
The judgment is affirmed.
HULL , J.
We concur:
RAYE , P. J.
NICHOLSON , J.
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