People v. Agers CA3 ( 2014 )

Filed 11/5/14 P. v. Agers 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Placer)
----
THE PEOPLE, C075864
Plaintiff and Respondent, (Super. Ct. No. 62-118960)
v.
JASON MATTHEW AGERS,
Defendant and Appellant.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Having reviewed the record as required by Wende, we shall affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
1
After his motion to suppress evidence was denied, defendant Jason Matthew Agers
pleaded no contest to possession of MDMA1 for sale (Health & Saf. Code, § 11378—
count one) and possession of marijuana for sale (id., § 11359—count two), and admitted
a prior drug-related conviction (id., § 11370.2, subd. (b)) and a prior prison term (Pen.
Code, § 667.5, subd. (b).2)
The parties stipulated to the following factual basis for defendant’s plea: “On or
about August 5, 2012, in Placer County, the defendant was found to be in possession of a
controlled substance, specifically MDMA. Law enforcement officers found
approximately 780 MDMA pills as well as an additional 32 grams of MDMA. The
officers also found over $3,000 in cash, and a qualified narcotics expert would testify that
the MDMA was possessed for the purposes of sale. Officers also located approximately
20 grams of marijuana. Along with the marijuana and the cash, a qualified narcotics
expert would testify that the marijuana was also possessed for the purposes of sale. [¶]
The defendant also has a prior conviction from April 11, 2001, from [a] federal court for
a violation of conspiracy to distribute MDMA. This qualifies as a prior pursuant to
Health and Safety Code [section] 11370.2[, subdivision] (b), but due to the defendant’s
incarceration on that case, it qualifies as a prior prison term pursuant to Penal Code
[section] 667.5[, subdivision] (b) for which he served time in a [federal] penal institution
and has not been free from custody for more than five years.”
The trial court sentenced defendant to an aggregate term of four years four
months, consisting of 16 months (the low term) on count one plus three years for the
1 MDMA stands for methylenedioxymethamphetamine, sometimes referred to as
“ecstasy.”
2 Undesignated statutory references are to the Penal Code.
2
prior drug-related conviction, with a concurrent 16-month (low term) sentence on count
two. The court dismissed the prior prison term enhancement. (§ 1385.)
The trial court ordered defendant’s aggregate term served as a “split” sentence,
with two years in actual custody in the county jail and the remainder on mandatory
supervision. (§ 1170, subd. (h)(5).) The court awarded defendant one day of presentence
custody credit. The court orally imposed a restitution fine (§ 1202.4, subd. (b)) but stated
that it would reduce the amount from that recommended by probation because it was
imposing a shorter sentence than probation had calculated.3 The court imposed an $80
court operations fee (§ 1465.8) and a $60 criminal conviction assessment (Gov. Code,
§ 70373). The court noted that it was not ordering a base fine, as recommended by
probation. The court also stated, without mentioning any other sums or statutes, “The
court will impose all the penalties and assessments below.” The court noted that because
it was reducing the sentence and restitution fine recommended by probation, other
penalties and assessments would have to be recalculated.
The original “Order of Imprisonment—Local Jail” (hereafter order), filed on the
date of sentencing, erroneously listed a $200 base fine (presumably under § 672), which
the court specifically waived, a $1,500 restitution fine (§ 1202.4, subd. (b)), an $80 court
operations fee (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code,
§ 70373). The order also listed a number of “penalty assessments,” none of which were
specifically mentioned orally by the trial court.
3 The amount recommended by the probation report (not stated orally by the trial court)
was $2,880. According to the reporter’s transcript, the trial court stated, “Under the state
restitution fund fine, I’ll reduce that $1,500 under [section] 1202.4.” Since the probation
report recommended $2,880—not $1,500—the court’s remark as transcribed does not
make sense. The restitution amount shown in the written order is $1,500. Thus, we
presume the court actually said (and the transcript should read), “Under the state
restitution fund fine, I’ll reduce that [to] $1,500 under [section] 1202.4.” (Italics added to
indicate omitted text.)
3
On May 28, 2014, a second amended order correctly listed only the following
fines, penalties, and assessments: a $1,500 restitution fine (§ 1202.4. subd. (b)), an $80
court operations fee (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code,
§ 70373).
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d
436.) Defendant was advised by counsel of the right to file a supplemental brief within
30 days of the date of filing of the opening brief. More than 30 days have elapsed, and
we have received no communication from defendant. Having undertaken an examination
of the entire record, we find no arguable error that would result in a disposition more
favorable to defendant.
DISPOSITION
The judgment (second amended order) is affirmed.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
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