Filed 4/3/15 P. v. Aufmann CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065293

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD243925,
                                                                     SCD246507)
BRIAN CHRISTOPHER AUFMANN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Howard H.

Shore, Judge. Affirmed.

         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         On December 6, 2013, Brian Christopher Aufmann entered a negotiated guilty

plea to: two counts of second degree burglary (Pen. Code,1 § 459 (counts 1 & 15)); grand

theft of an automobile with a prior similar conviction (§§ 487, subd. (d)(1), 666.5, subd.



1        All further statutory references are to the Penal Code.
(a) (count 3)); assault with a deadly weapon with personal use of a deadly weapon

(§§ 245, subd. (a)(1), 1192.7, subd. (c)(23) (count 5)); and grand theft of personal

property (§ 487, subd. (a) (count 10)). As part of the plea agreement, Aufmann admitted

having served three prior prison terms (§ 667.5, subd. (b)) and having suffered one prior

serious felony conviction (§ 667, subd. (a)). Pursuant to the plea bargain, the remaining

24 counts and a strike allegation (§ 667, subds. (b)-(i)) were dismissed with a Harvey

waiver (People v. Harvey (1979) 25 Cal.3d 754). On January 6, 2014, the court

sentenced Aufmann to a stipulated 15-year prison term: the four-year upper term on

count 5; a consecutive one-year term (one-third the middle term) on count 3; consecutive

eight-month terms (one-third the middle term) on counts 1, 10 and 15; one year for each

prior prison term; and five years for the serious felony prior conviction. Aufmann

appeals. We affirm.

                                             I.

                              FACTUAL BACKGROUND

       Aufmann entered Parker Construction's building "and stole tools with the intent to

permanently deprive." He stole an automobile belonging to Nicholas Gallego and had a

prior conviction of felony vehicle theft. Aufmann committed an assault upon Gallego

with an automobile, a deadly weapon. Aufmann stole property valued at over $950 from

Jeffrey Rubin. Aufmann entered a building occupied by Stephen Games with the intent

to commit theft. These crimes occurred between June and November 2012.




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                                             II.

                                       DISCUSSION

                                             A.

                           Appointed Appellate Counsel's Brief

       Appointed appellate counsel has filed a brief summarizing the facts and

proceedings below. Counsel asks this court to review the record for error as mandated by

People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S.

738 (Anders). Counsel lists the following "[i]ssues which were considered by appellate

counsel:" (1) Whether Aufmann's plea was knowing and intelligent. (2) Whether the

court properly calculated pretrial credits. (3) Whether the court properly imposed the

fines and fees. (4) Whether Aufmann was denied the right to present his defense, and had

no choice but to enter the plea, after the court ruled that he could not present evidence

that the police assaulted him when he was resisting arrest. (5) Whether the court

"harbored a conflict of interest when [it] coerced [Aufmann] into waiving time."

(6) Whether the court erred by refusing to hear Aufmann's ex parte motion to dismiss and

therefore forced him "to file the motion with the prosecution and reveal defense strategy."

(7) Whether the court erred by denying Aufmann's motion to dismiss because late

discovery (30 compact discs) resulted in a denial of due process in that Aufmann did not

have the time or opportunity to defend himself properly. (8) Whether attorney

Gassimakani provided effective assistance of counsel between January and August 1,

2013. (9) Whether attorney Mondor provided effective assistance of counsel between

August 1 and October 11 by failing to oppose the prosecutor's motion to consolidate all


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charges. (10) "Because of ineffective assistance [of] both prior attorneys, [Aufmann] was

forced to go in pro per and signed the Lopez waiver [People v. Lopez (1977)

71 Cal.App.3d 568] at the time he thought his maximum exposure was 32 years. When

he signed the plea agreement, he discovered his maximum time was '48.6 years.' (Actual

max was 43 years, 8 months . . . .)] He contends this made his [Lopez] waiver invalid and

therefore he was without counsel from October 11, 2013 to the present."2 (11) Whether

the court erred by denying Aufmann's motion to dismiss the information because he was

not committed with reasonable or probable cause (§ 995). (12) Whether the court erred

by denying Aufmann's motion to dismiss counts 8, 9 and 10 because he was not

committed with reasonable or probable cause (§ 995). (13) Whether the court erred by

denying Aufmann's motion to dismiss counts 5, 6 and 7 because he was not committed

with reasonable or probable cause (§ 995). (14) Whether the court erred by denying

Aufmann's motion to dismiss because he was denied his Fifth and Fourteenth

Amendment right to due process and a fair hearing before an unbiased judge free of a

conflict of interest. (15) Whether the court erred under section 1538.5 and the Fourth

Amendment when it denied Aufmann's November 19 motion to suppress which argued

the police unlawfully searched his property on February 21 without consent and a

warrant. (16) Whether the court erred under section 1538.5 and the Fourth Amendment


2       Rather than being a possible, but not arguable issue within the meaning of Anders,
this is an unequivocal assertion of error. Counsel's filing of a brief arguing a specific
issue removes an appeal from Wende's ambit. (People v. Woodard (1986) 184
Cal.App.3d 944; Wende, supra, at p. 442 ["a review of the entire record is not necessarily
required" when counsel "raises specific issues"].) Nevertheless, we have reviewed the
entire record.

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when it denied Aufmann's November 20 motion to suppress which argued the police

unlawfully arrested him on February 21 without consent and a warrant. (17) Whether the

court erred by denying Aufmann's December 2 motion to dismiss for denial of due

process. (18) Whether the court erred under section 1538.5 and the Fourth Amendment

when it denied Aufmann's December 2 motion to suppress which argued the police

unlawfully searched and seized a car in front of his house without consent and a warrant.

(19) Whether the court erred by denying Aufmann's motion challenging eyewitness

identification.

                                             B.



                              Aufmann's Supplemental Brief

                                             1.

                                        Contentions

       We granted Aufmann permission to file a brief on his own behalf. He has done so,

contending as follows. The prosecutor's and the court's misadvisement, misinformation

and misleading statements led to the plea agreement. After Aufmann entered the guilty

plea, the court changed the terms of the agreement. Admission of the serious felony prior

(§ 667, subd. (a)) was not part of the agreement, and the court's application of that prior

violated the term of the agreement guaranteeing 50 percent credits. The court did not

follow the agreement concerning section 666.5, subdivision (a); the court misinformed

Aufmann by calling section 666.5, subdivision (a) an enhancement of two, three or four

years. The court used the same prior as a basis for one of the prison prior enhancements,


                                              5
for the serious felony prior enhancement and for the section 666.5, subdivision (a)

enhancement. The agreement can only be enforced by modifying and suspending the

sentence and sentencing Aufmann under section 1170.9 as a veteran. The court

committed prejudicial error and deprived Aufmann of due process by denying his motion

to continue sentencing to seek advice through the Veterans Administration and an

evaluation by the Department of Veterans Affairs and to acquire legal counsel. The court

deprived Aufmann of due process by denying him a hearing pursuant to section 1170.9.

The court erred by sentencing Aufmann based on a probation report that was not filed

until the day after sentencing; Aufmann was not given a copy of the report and he was

deprived of a meaningful opportunity to object to the report and the material it contained.

Aufmann's four motions were not discussed in the probation report. His motion to waive

court fees and restitution, filed on December 17, 2013, is not in the record, although

mentioned in the sentencing minutes.

                                             2.

                                         Analysis

       A review of the record reveals Aufmann's guilty plea was knowing, intelligent and

voluntary. As part of the plea bargain, he admitted a prior serious felony conviction

(§§ 667, subd. (a), 1192.7, subd. (c)(19)) for robbery in Case No. SCD146690; pursuant

to the bargain, a strike (§ 667, subds. (b)-(i)) based on the same robbery was dismissed.

Count 5 constituted a serious felony because it involved personal use of a deadly weapon

(§ 1192.7, subd. (c)(23)), and Aufmann acknowledged that his conviction in this case

would be a strike. The change of plea form stated Aufmann would receive 50 percent


                                             6
credits and noted the strike alleged in the information would be dismissed. At the change

of plea hearing, the court told Aufmann he would receive 50 percent credits "because the

strike that would require 80 percent is going to be stricken." Later, the court asked

Aufmann, "The People and the defense are stipulating to a 15-year prison term, and

you're to receive 50 percent good-time credits; do you understand that?" Aufmann

replied, "Yes, your honor." When the court asked the deputy district attorney whether

there was anything the People wished to add before the court accepted the plea, the

deputy district attorney stated the following. "Your honor, . . . it is our understanding that

by striking the prior allegation even with the defendant's plea to count 5 with a new

strike, . . . the defendant should be receiving 50-percent credits and not 80-percent

credits. [¶] If there is some dispute as to that, we would like to bring this sentencing

back to readdress it in the future, and that's been our commitment to the defendant."

When the court asked Aufmann if he understood, Aufmann said he did. Because the

strike was dismissed, the 20 percent postsentence conduct credit limitation applicable to a

defendant sentenced under the Three Strikes Law does not apply to Aufmann.

(In re Young (2004) 32 Cal.4th 900, 904-905.) The court did not change the terms of the

agreement.

       As part of the plea bargain, Aufmann admitted, as to count 3, that he had a prior

theft conviction within the meaning of section 666.5, subdivision (a). The court referred

to section 666.5, subdivision (a) as an "enhancement" adding a term of two, three or four

years. Actually, the term of two, three or four years specified in section 666.5 is "not an

enhancement but a greater base term for certain recidivists." (People v. Demara (1995)


                                              7
41 Cal.App.4th 448, 452.) Aufmann received a consecutive sentence of eight months

(one-third the middle term) on count 3. There was no violation of the plea bargain, nor

was there any other error as to section 666.5, subdivision (a).

       It is not error to use the same prior conviction for purposes of sections 666.5,

subdivision (a) and 667.5, subdivision (b). (People v. Garcia (2003) 107 Cal.App.4th

1159, 1165-1166.) Furthermore, there were three offenses underlying section 666.5,

subdivision (a) in this case, none of which provided a basis for the 667, subdivision (a)

enhancement. Although the basis for the 667, subdivision (a) enhancement was also the

basis for one of the prison priors, there were three other cases underlying that prison

prior. There was no improper dual use.

       Section 1170.9 provides an alternative to prison commitments for eligible combat

veterans. (§ 1170.9, subd. (a).) Because the plea bargain required a prison sentence,

section 1170.9 does not apply to Aufmann.

       As part of the plea bargain, Aufmann waived his "right to a full probation report

before sentencing." Furthermore, at sentencing, the court stated it had received the

probation report.

       Finally, although no written motion to waive court fees and restitution appears in

the clerk's transcript, at sentencing the court stated Aufmann "submitted a form for a

waiver of additional court fees" which requested a waiver of restitution. The court

correctly stated it could not waive restitution. (§ 1202.4.) The court also stated Aufmann

could "address any request for fee waivers of the appeal to the appellate court." We




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assume this was a reference to the various mandatory fines and fees the court had just

imposed, all of which were proper.

                                            III.

                                     CONCLUSION

       A review of the record pursuant to Wende and Anders, including the possible

issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.

Aufmann has been competently represented by appellate counsel.

                                     DISPOSITION

       The judgment is affirmed.


                                                                           O'ROURKE, J.

WE CONCUR:



NARES, Acting P. J.



AARON, J.




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