P. v. Edison
Filed 2/23/07 P. v. Edison CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. ZANDRA L. EDISON, Defendant and Appellant. | D048796 (Super. Ct. No. SCE204888) |
APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson and Herbert J. Exarhos, Judges. Affirmed.
On February 13, 1001, Zandra L. Edison entered guilty pleas to inflicting corporal injury on her spouse, (Pen. Code, 273.5, subd. (a))[1]and assault with a deadly weapon ( 245, subd. (a)(1)). She admitted personally using a deadly weapon ( 12022, subd. (b)(1)) and inflicting great bodily injury ( 12022.7, subd. (d)). The court suspended imposition of sentence and placed her on five years probation. In March 2004, the court revoked and reinstated probation after Edison admitted using force and violence on another. In October 2005, the court revoked probation after Edison admitted failing to report to her probation officer and to remain law-abiding. The court obtained a diagnosis and evaluation of Edison from the California Department of Corrections and Rehabilitation ( 1203.03) that recommended the court impose a prison sentence. The court sentenced her to prison for six years: the two-year lower term for inflicting corporal injury on her spouse, enhanced three years for inflicting great bodily injury and one year for deadly weapon use. It stayed sentence for assault with a deadly weapon. ( 654.) The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. For much of the day on April 14, 2000, Edison and her husband Tracy Edison[2]argued. She was drinking brandy. Around 1:00 a.m. on April 15, Tracy went to sleep. Edison approached the bed and cut Tracy's face and arm with a knife. Tracy was taken to the hospital. Approximately 60 stitches were required to treat his face and arm.
DISCUSSION
Because Edison entered a guilty plea, she cannot challenge the facts underlying the conviction. ( 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.)
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible issue whether the trial court erred in including in the minutes and abstract of judgment an order that Edison pay a $200 restitution fine if she does not satisfactorily complete parole. ( 1203.045.)
We granted Edison permission to file a brief on her own behalf. She has responded. Edison contends that Penal Code, section 1473.5 was not considered in her case, that she was forced to plead guilty to a misdemeanor domestic violence charge that was the basis of her first probation violation, that she has undergone many years as the victim of Tracy's emotional and physical violence, that the facts do not support the conviction, that the sentence is excessive and that her case is like that involved in Cunningham v. California (Jan. 22, 2007, No. 05-6551) __ U.S. __ [2007 WL 135687; 2007 U.S. LEXIS 1324; 2007 D.A.R. 1003].
Section 1473.5 applies to petitions for a writ of habeas corpus in which the petition seeks relief from conviction of a violent crime committed before August 29, 1996. We are considering an appeal not a petition of a writ of habeas corpus and the crime was committed in 2000. Section 1473.5 is inapplicable here.
Regarding Edison's contention that her attorney forced her to plead guilty to misdemeanor domestic violence applicable to her first probation violation and she entered the guilty pleas because of duress, the record reflects only that Edison was properly advised, waived her rights and entered the guilty pleas. Any claim that the guilty pleas were not free and voluntary is based on facts not included in the record. When reviewing an appeal we are limited to the record before us. (People v. Jackson (1964) 230 Cal.App.2d 485, 490; People v. Roberts (1963) 213 Cal.App.2d 387, 394.) If Edison wishes to pursue this issue, she must do so by a habeas corpus petition filed in the trial court.
Regarding Edison's contentions that the facts do not support the conviction and that she has gone through many years as the victim of Tracy's violence -- an apparent claim of self defense -- having entered guilty pleas to inflicting corporal injury and assault with a deadly weapon, Edison is precluded from making these contentions on appeal. ( 1237.5; People v. Martin, supra, 9 Cal.3d 687, 693.)
Regarding Edison's contention that the sentence is excessive, after unsuccessfully attempting to rehabilitate Edison through probation, the court sentenced her to prison for six years: the two year lower term for inflicting corporal injury on her spouse enhanced three years for inflicting great bodily injury and one year for deadly weapon use. The court stayed sentence for assault with a deadly weapon. The sentence was within the court's statutory authority. If Edison is claiming that the sentence is cruel and unusual, she is mistaken. Punishment may be cruel and unusual if it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) In In re Lynch, the court identified three factors to consider in determining whether a particular punishment is so disproportionate that it constitutes cruel and unusual punishment: (1) The nature of the offense and/or the offender, with particular attention to the degree of danger both present to society; (2) a comparison of the challenged punishment with penalties for worse offenses in the same jurisdiction; and (3) a comparison of the challenged punishment with penalties for the same offense in other jurisdictions. (Id. at pp. 425-427.) A six-year sentence for stabbing a spouse with a deadly weapon that causes great bodily injury does not shock the conscience, is not greater than the sentence for more serious crimes in California and Edison has not shown the sentence is greater than that imposed for similar crimes in other jurisdictions.
Regarding Edison's contention that her case is like Cunningham v. California, supra, she is mistaken. In Cunningham the United States Supreme Court held that imposition of the upper term under California's Determinate Sentencing Law violates the right to a jury trial and proof beyond a reasonable doubt, by allowing judges to conduct fact-finding on aggravating factors used to impose an upper term sentence. Here, the court imposed the lower term not the upper term. Cunningham is inapposite.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Edison on this appeal.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1] All statutory references are to the Penal Code.
[2] Because Tracy Edison and defendant share the same last name, we refer to Tracy Edison as Tracy for clarity.
