PEOPLE v. NILES

No. C083542.

THE PEOPLE, Plaintiff and Respondent, v. DANIEL NICKOLAS WING NILES, Defendant and Appellant.

Court of Appeals of California, Third District, Butte.


NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We modify the judgment and affirm as modified.

I. BACKGROUND

A felony complaint filed March 21, 2016, and later deemed an information, charged defendant Daniel Nickolas Wing Niles with inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)(1)—count 1),1 false imprisonment by violence (§ 236—count 2), and misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a)—count 3).

On July 14, 2016, defendant pleaded guilty as charged in return for a promise of no immediate state prison time and the understanding that his maximum exposure was four years eight months in state prison. The parties stipulated that the probation report would provide the factual basis for the plea.

According to the probation report, on March 17, 2016, defendant and his girlfriend and cohabitant, N.H., fought physically inside and outside their apartment while N.H. tried to leave. She suffered red marks on her neck from defendant's hands and bloody abrasions on her hands and knees. At the time, a protective order for her benefit against defendant was in effect.

On September 8, 2016, the trial court suspended imposition of a three-year state prison term and granted three years' formal probation, including 60 days in jail. The court renewed the protective order as to N.H.

On October 17, 2016, the probation department filed a petition for a hearing on defendant's alleged violation of probation. The petition alleged that on September 24, 2016, defendant had committed violations of section 273.6, subdivision (a), and Health and Safety Code section 11377, subdivision (a).

On October 20, 2016, defendant admitted the violations.

On November 10, 2016, the trial court revoked and terminated defendant's probation and imposed a four-year eight-month prison sentence (the upper term of four years on count 1, plus eight months consecutive on count 2, with an additional one year on count 3 to run concurrent).2 The court awarded 97 days of presentence custody credit (49 actual days and 48 conduct days). The court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a suspended $300 parole revocation restitution fine (§ 1202.45), and a $300 probation revocation restitution fine (§ 1202.44). The court confirmed the previously imposed $120 court operations assessment (§ 1465.8), $90 conviction assessment (Gov. Code, § 70373), and $25 criminal justice administration fee (Gov. Code, § 29550, subd. (c)). The court set aside previously imposed domestic violence fees for lack of ability to pay. The court reserved victim restitution as to N.H.

II. DISCUSSION

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 elapsed, and we 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.

We note an error in the oral pronouncement of judgment. As mentioned above, the trial court purported to impose the full middle term on count 2 and then to stay all but eight months of it. The correct sentencing method on a subordinate term is to impose one-third of the middle term. (See § 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655.) We modify the judgment to reflect a sentence of eight months consecutive on count 2. The abstract of judgment does not need to be amended because it correctly shows the sentence on count 2 as one-third the middle term.

III. DISPOSITION

The judgment is affirmed as modified.

BLEASE, Acting P. J. and ROBIE, J., concurs.

FootNotes


1. Undesignated statutory references are to the Penal Code.
2. The court purported to impose the full middle term on count 2 and then to stay all but eight months of it. As we explain below, this method of sentencing was erroneous.

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