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Filed 1/20/23 P. v. Kaulaity 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Siskiyou)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

GERT APPRICHO KAULAITY,

Defendant and Appellant.

C096049

(Super. Ct. No. 

SCCRCRF20201333, 

SCCRCRF20201348)

Appointed counsel for defendant Gert Appricho Kaulaity has filed an opening 

brief that sets forth the facts of the case and asks this court to review the record and 

determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436.) 

After examining the record, we have identified two minor clerical errors in 

sentencing and in the abstract of judgment that warrant correction. We will correct the 

sentencing error and direct the trial court to correct the error in the abstract of judgment. 

Finding no other errors that are favorable to defendant, we will affirm the judgment.
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I. BACKGROUND

Defendant pointed a semiautomatic firearm at the victim’s head and threatened to 

shoot him after the victim noticed defendant was parked in the victim’s parking space at 

his apartment complex. In case No. SCCRCRF20201333 (1333), the prosecution 

charged defendant with assault with a semiautomatic firearm (Pen. Code, § 245, subd. 

(b)—count 1);

1 assault with a firearm (§ 245, subd. (a)(2)—count 2); making a criminal 

threat (§ 422, subd. (a)—count 3); possession of a firearm by a convicted felon (§ 29800, 

subd. (a)(1)—count 4); and, exhibiting a firearm (§ 417, subd. (a)(2)(B)—count 5). The 

prosecution also alleged defendant personally used a firearm as to counts 1 through 3 

(§ 12022.5), and committed the offenses while he was released on bail as to counts 1 

through 4 (§ 12022.1). 

In case No. SCCRCRF20201348 (1348), the prosecution charged defendant with 

two felony counts of failure to appear (§ 1320, subd. (b)) and two misdemeanor counts of

failure to appear (§ 1320, subd. (a)) after he failed to appear for ordered appearances in 

two other cases.2 The prosecution also alleged defendant was released on bail when he 

committed the offenses alleged in the former two counts. 

Defendant pled no contest to assault with a semiautomatic firearm and possession 

of a firearm as a convicted felon, and admitted the allegation that he personally used a 

firearm in case No. 1333. Defendant also pled no contest to all counts and admitted the 

allegation he had committed the offenses while released on bail in case No. 1348. 

Under the agreements resolving the two cases, defendant would be placed on 

probation for five years, with a sentence of up to 364 days in jail. He received a waiver 

under People v. Cruz (1988) 44 Cal.3d 1247 (Cruz). Defendant failed to report to the 

1 Undesignated statutory references are to the Penal Code.

2

 One of the felony counts in case No. 1348 was reduced to a misdemeanor. 
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probation department several times and failed to appear for multiple sentencing hearings. 

The prosecution filed a notice of violation of the Cruz waiver. 

Before a hearing on the Cruz violation, defense counsel declared a conflict of 

interest and the court appointed new counsel. At the next hearing, defendant requested a 

hearing under People v. Marsden (1970) 2 Cal.3d 118 as to his original attorney. The 

court interpreted defendant’s statements as a request to withdraw his plea and requested a 

noticed motion and a response from the prosecution. The parties filed briefing and the 

court denied the motion. 

At the next hearing, the parties announced a disposition to resolve the cases, along 

with two new cases defendant had accrued. In case No. 1333, defendant would be 

sentenced to six years for assault with a semiautomatic firearm, plus four years for the 

personal use of a firearm enhancement. Defendant would receive concurrent sentences 

for the remaining counts in case Nos. 1333 and 1348, as well as for the counts in his other 

cases. The court accepted defendant’s plea in the remaining cases and sentenced 

defendant in accordance with the agreed disposition. Considering defendant’s ability to 

pay, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)) and a $300 parole 

revocation fine (§ 1202.45), suspended pending revocation of parole, in case No. 1348;

and a $300 restitution fine (§ 1202.4, subd. (b)) and $300 parole revocation fine

(§ 1202.45), suspended pending revocation of parole, in case No. 1333. The court also 

imposed a variety of fines in the other cases included in the agreement. 

After a failed attempt to file a notice of appeal in the case, we permitted defendant 

to file a notice of appeal under the constructive filing doctrine. The notice of appeal was 

based on matters that do not affect the validity of the plea, and no certificate of probable 

cause was attached. 

II. DISCUSSION

Appointed counsel filed an opening brief setting forth the facts of the case and 

asking this court to review the record and determine whether there are any arguable 
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issues on appeal. (People v. 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 the 

opening brief. More than 30 days have elapsed, and we have received no communication 

from defendant. 

Our review of the record disclosed a minor error at the sentencing hearing. At the 

sentencing hearing, the trial court announced its intention to reduce the probation 

officer’s recommended restitution fines to $300, based on defendant’s ability to pay. In 

the written order describing the fines and fees imposed, the court also reduced the 

recommended restitution fines to $300 for each case. In the minute order for the hearing 

in case No. 1333, the restitution fine is also denoted as $300. In the oral pronouncement 

of sentence for case No. 1333, however, the court imposed the full recommended 

restitution fine of $6,000. Given the multiple references to the $300 restitution fine by 

the court, both orally and in writing, it is clear that the court simply made a misstatement

when it imposed a $6,000 restitution fine while going through the lengthy list of fines 

imposed for defendant’s numerous cases. We will correct the record accordingly. (See 

People v. Jack (1989) 213 Cal.App.3d 913, 915-916.)

Second, we note an error in the abstract of judgment that warrants correction. 

Although the trial court imposed restitution and parole revocation fines for both cases at 

sentencing, the abstract of judgment does not reflect those fines. Typically, “[w]here 

there is a discrepancy between the oral pronouncement of judgment and the minute order 

or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 

147 Cal.App.4th 380, 385.) We will direct the court to correct the abstract of judgment to 

accurately reflect those fines. 

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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III. DISPOSITION

The judgment is affirmed. The trial court is directed to correct the abstract of 

judgment to accurately reflect the $300 restitution fines imposed under section 1202.4, 

subdivision (b)(2) and $300 parole revocation fines imposed under section 1202.45 in 

case Nos. 1333 and 1348. The court is directed to forward a certified copy of the 

corrected abstract of judgment to the Department of Corrections and Rehabilitation. 

/S/

 

RENNER, Acting P. J.

We concur:

/S/

 

KRAUSE, J.

/S/

 

EARL, J.