P. v. Garcia

Filed 3/28/07 P. v. Garcia CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Joan Camparet-Cassani, Judge. Affirmed.

Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

___________________________

In December 2003, Joel R. Garcia was charged with two counts of spousal rape (Pen. Code,  262, subd. (a)(1)), two counts of sodomy by force (Pen. Code,  286, subd. (c)(2)), one count of criminal threats (Pen. Code,  422), and one count of sexual battery by restraint (Pen. Code,  243.4, subd. (a)), all allegedly committed on his wife. In January 2004, pursuant to a plea bargain, the prosecutor amended the information to add one count of assault with intent to commit rape (Pen. Code,  220, subd. (a)), and Garcia pleaded no contest to that count and the previously charged count of making criminal threats. The remaining counts were dismissed, and Garcia was given a combined sentence of six years and eight months. That sentence was suspended and Garcia was placed on probation for five years.

On August 6, 2005, Garcia was arrested for drunken driving, with a blood alcohol level of .14 or .15. A probation revocation hearing was ordered. Garcia stipulated to having violated his probation, but argued that instead of having probation revoked and his original sentence imposed, a lesser penalty was warranted. Garcias probation officer testified that until the DUI arrest Garcia had performed well on probation. Also testifying were Garcias wife and other character witnesses, who believed Garcia was a good man who had simply stumbled a bit on his road to reformation. The trial court found the defense character witnesses were not credible because they were either unaware of Garcias past criminal conduct and drug and alcohol abuse or because they said they would not change their opinions even after hearing about those matters. Given the horrific nature of Garcias original crimes raping and sodomizing his wife while the children were in the house the court declined to do anything other than revoke probation and imposed the original sentence of six years and eight months.

Garcia filed a notice of appeal and we appointed counsel to represent him. On October 26, 2006, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration from counsel that she had reviewed the record and had sent Garcia a letter advising him that such a brief would be filed and that he could file a supplemental brief if he chose to. That same day, this court sent Garcia a letter advising him that a Wende brief had been filed and that he had 30 days to submit a brief raising any issues he wanted us to consider. Garcia did not file a supplemental brief.

We have examined the entire record and are satisfied that appellants attorney has fully complied with her responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; People v. Wende, supra, 25 Cal.3d 436.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

BOLAND, J.

FLIER, J.

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