PEOPLE v. MONTELEONE

No. C082224.

THE PEOPLE, Plaintiff and Respondent, v. CHARLES MONTELEONE, Defendant and Appellant.

Court of Appeals of California, Third District, Yolo.


NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

RENNER, J.

Appointed counsel for defendant Charles Monteleone has filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we have found two sentencing errors that must be corrected. We will modify the judgment (order of probation) to correct these errors and direct the trial court to prepare an amended order of probation. Finding no other arguable error that would result in a disposition more favorable to defendant, we affirm the judgment as modified.

I. BACKGROUND

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.)

The victim, V.M., and defendant married in 2009 and have two children together, ages three and 11 at the time of trial.

Around December 2014, the couple separated for approximately six to eight months. During this time period, V.M. would make arrangements for her children to stay with defendant while she worked the graveyard shift from midnight to 9:00 a.m.

On January 2, 2015, V.M. went to the store with her children. When she arrived home around 9:00 p.m., defendant was waiting for her. He claimed that he was there to pick up the children. V.M., however, was not expecting defendant because she had not made arrangements with him to pick up the children. Because defendant was upset at her for not answering his phone calls, V.M. asked defendant to leave. Defendant refused to do so. Instead, he yelled and swore at V.M. in front of the children. He also called her names, including "bitch" and "whore," and accused her of cheating on him.

When V.M. and the children went inside, defendant followed them. He pushed the door open and forced his way into the residence. Once inside, defendant asked V.M. if she was sleeping with someone else and said that he was going to take his bed or burn it. When defendant made this statement, he was holding lighter fluid. V.M. testified that at this point she was scared defendant might burn her house down.

Eventually, V.M. called the police. During the 911 call, V.M. was crying. She told the 911 operator that defendant had been harassing her and calling her every day and leaving "all kinds of messages and threats."

Around 9:15 p.m., Officer Parceen Lal of the Woodland Police Department was dispatched to V.M.'s residence. Upon his arrival, Officer Lal heard yelling inside the house and noticed that some Christmas decorations near the front door appeared to be broken. When defendant and V.M. greeted him at the front door, Officer Lal noticed that V.M. had been crying and was "shaken up." Officer Lal directed defendant to come outside and then performed a pat search for weapons. During the search, a lighter was found.

Following the search, Officer Lal went inside and spoke to V.M. while his partner stayed outside with defendant. V.M. explained that defendant was waiting for her when she arrived home. She said that he argued with her and accused her of sleeping with another man named Jose. During the argument he told her, "`I'm going to burn the bed down, you fucking bitch. You're fucking Jose.'" V.M. further explained that defendant forced his way into her house and they engaged in a brief struggle over the lighter fluid. According to V.M., defendant grabbed her right hand and pinned it down for about five to 10 seconds after she took the lighter fluid away from him. Defendant also called her names, including "`a fucking whore, a fucking bitch, [and] a slut.'" When Officer Lal inspected V.M.'s hands, he noticed redness on her right "hand/wrist area." V.M. said that the redness was caused by defendant when he grabbed her hand and pinned it down.

During her conversation with Officer Lal, V.M. claimed that she was afraid defendant might "burn the bed down." She also claimed that she was scared of defendant due to his prior abuse. V.M. explained that defendant had been parking in front of her house and watching her and then following her when she would leave. According to V.M., defendant would also come to her bedroom window while she was asleep to see if she was with another man. She also said that defendant would call her 50 to 60 times a day and text her 15 to 20 times a day. In those communications, he would accuse her of cheating and want to know where she was.1

Before Officer Lal left the residence, he assisted V.M. in obtaining an emergency protective order. V.M. subsequently obtained a restraining order against defendant.

On March 31, 2015, V.M. called the police and reported that defendant had followed her to Walgreens and had been driving back and forth in front of her residence. She also told the police that she thought defendant had recently followed her to work.

On July 2, 2015, defendant was charged by information with stalking (Pen. Code, § 646.9, subd. (a) — count 1)2 making a criminal threat (§ 422 — count 2), and misdemeanor battery on the mother of his child (§ 243, subd. (e)(1) — count 3). After a jury trial, defendant was found guilty of the stalking offense but not guilty of the battery offense and the making of a criminal threat offense.

On June 8, 2016, the trial court sentenced defendant to three years of formal probation with various conditions, including the condition he serve 90 days in county jail. The trial court issued a three-year criminal protective order pursuant to section 1203.097, and ordered defendant to pay various fines and fees. This timely appeal followed.

II. DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history 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 from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record, we have found two sentencing errors that must be corrected.

At sentencing, the trial court failed to orally impose a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) or a $40 court operations assessment (§ 1465.8, subd. (a)(1)) as required by statute. (People v. Sencion (2012) 211 Cal.App.4th 480, 484-485.) Therefore, we will modify the oral pronouncement of judgment to correct this error and direct the trial court to prepare an amended probation order.

In addition, the trial court orally imposed a restitution fine (§ 1202.4, subd. (b)(1)) in the amount of $300 but failed to orally impose and stay an additional probation revocation restitution fine (§ 1202.44). Since imposition of this fine is mandatory, we will modify the oral pronouncement of judgment to impose and stay a $300 probation revocation restitution fine. (§ 1202.44 ["In every case in which . . . a period of probation is imposed, the court shall, at the time of imposing the restitution fine [(§ 1202.4)] . . ., assess an additional probation revocation restitution fine in the same amount [as the restitution fine]. This additional probation revocation restitution fine shall become effective upon the revocation of probation . . ."].) However, because the probation order correctly reflects that a $300 probation revocation restitution fine was orally imposed, the order need not be modified in this regard.

Because we find no other arguable error on appeal that would result in a disposition more favorable to defendant, we affirm the judgment as modified.

III. DISPOSITION

The oral pronouncement of judgment is modified to reflect that a $40 court operations assessment (§1465.8, subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) were imposed. In addition, the oral pronouncement of judgment is modified to reflect that a $300 probation revocation restitution fine (§1202.44) was imposed and stayed. The clerk of the trial court is directed to prepare an amended order of probation reflecting the imposition of a $40 court operations assessment and a $30 court facilities assessment. The clerk shall forward a certified copy of the amended order to the probation department. As modified, the judgment is affirmed.

RAYE, P. J., and MAURO, J., concurs.

FootNotes


1. At trial, V.M. clarified that defendant had not called her every day. Instead, he would sometimes send her text messages or leave voicemails indicating that he was coming over to make sure she was not with another man.
2. Undesignated statutory references are to the Penal Code.

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