P. v. Gonzales
Filed 8/2/07 P. v. Gonzales CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JOSE GONZALES, Defendant and Appellant. | H030884 (Monterey County Super. Ct. No. SS052621) |
Defendant Jose Gonzales was charged with three counts of assault with a deadly weapon or force likely to produce great bodily injury (Pen. Code 245, subd. (a)(1))[1] (counts 1, 4 & 7), two counts of corporal injury to a spouse/cohabitant ( 273.5, subd. (a)) (counts 2 & 5) and two counts of threats of violence (section 422) (counts 3 & 6). He was also charged with special allegations: personally inflicting great bodily injury under circumstances of domestic violence ( 12022.7, subd. (e)) (as to counts 1, 2 & 6) and use of a deadly or dangerous weapon ( 12022, subd. (b)) (as to counts 2, 3, 5 & 6). Furthermore, counts 1 and 2 were charged as serious and violent felonies ( 1192.7, subd. (c)(8) & 667.5, subd. (c)(8)) and counts 3, 6 and 7 were charged as serious felonies ( 1192.7, subd. (c)).
On September 28, 2006, pursuant to an agreement, defendant waived his right to a jury trial as to count 2 ( 273.5) and the great bodily injury enhancement with dismissal of all other charges and a seven-year maximum prison sentence if convicted.
A court trial was held on October 2, 2006. Defendant was found guilty of section 273.5, subdivision (a) and the special allegation was found to be true.
On November 2, 2006, defendant was sentenced to prison for seven years, based on the upper term of four years for the domestic violence offense and a consecutive three-year term for the enhancement.[2] The court selected the upper term based on defendants prior record of convictions and probation status, as well as other factors contained in the probation report.
STATEMENT OF FACTS
Rita Martinez testified that she and defendant lived together in a motel in Salinas. On September 10, 2005, Martinez returned to the room to find defendant upset with her for arriving later than he expected and angry over his inability to light a barbeque. She stated that defendant, while seated in his wheelchair, grabbed her by the neck; she denied telling the police that he choked her. Suddenly, he stabbed her in the pelvic region with a knife. After threatening to kill Martinez, he slashed her in the face with another larger knife, slicing her over her right eye almost the entire length of her eyebrow. Martinez was able to leave the room. The police were called by the manager. Martinez received medical attention for her injuries, including stitches. Martinez testified about prior incidents of defendants violence towards her causing injury.
The emergency room physician who treated Martinez the day of the injury described the wound to her face as a cut straight down to the orbital bone. As to the stab wound near her bladder, he testified that her pelvic bone stopped further penetration.
The responding police officer testified that he collected two knives from the motel room, one from the floor near the beds and another larger knife from the kitchen sink.
The defense evidence consisted of the testimony of a police officer who spoke to Martinez at the hospital. Martinez said the defendant attempted to choke her.
DISCUSSION
We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and the facts but raises no specific issues.
We have notified defendant of his right to submit written argument in his own behalf within 30 days. The period has elapsed and we have received no written argument from defendant. However, in his notice of appeal filed in propria persona, defendant seemingly challenges the credibility of Martinez and false evidence, but he does not raise any specific claim of error.
Defendants notice also states that he was denied Marsden in Motion [sic] twice. On March 30, 2006, the trial court heard a noticed Marsden[3]motion filed on that same day. On September 21, 2006, defendant filed a second Marsden motion, indicating a hearing date of September 14, 2006. Defendants next court appearance after the filing date of this motion was September 28, 2006, the date on which the agreement was reached to waive jury trial and try one count and the special allegation as above-described. The record on that date and thereafter is silent concerning the filed motion or any other challenge to or disagreement with defendants representation.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record, including the sealed portion of the record related to the Marsden hearing, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.)
DISPOSITION
The judgment is affirmed.
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McAdams, J.
WE CONCUR:
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Mihara, Acting P.J.
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Duffy, J.
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[1] All further statutory references are to the Penal Code.
[2] The reporters transcript reflects that the court transposed the number of years. Elsewhere, the record is clear the court intended to give the upper term of four years on count 2 and a total prison sentence of seven years.
