Filed 6/29/17 P. v. Howard CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE HOWARD,

Defendant and Appellant.

F073473

(Super. Ct. No. 15CR-05541)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Harry Jacobs, Judge.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-



INTRODUCTION
Appellant Jesse Howard pled no contest to a charge of inflicting corporal injury on a spouse in violation of Penal Code section 273.5, subdivision (a), and admitted three prior prison term allegations pursuant to section 667.5, subdivision (b), in exchange for an agreed upon prison term of seven years. The trial court imposed sentence in accordance with the plea agreement. Howard appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Howard and his wife, Sharon , had been married about three years. Howard was verbally and physically abusive to Sharon, calling her “bitch,” “whore,” and “worthless.” He also hit Sharon, usually with an open-handed slap.
The night of October 7, 2015, Howard picked Sharon up from her niece’s house where she had gone to do laundry. When he picked her up, Howard was upset and cursing at her. As Howard and Sharon arrived at their home, a friend, Jesse, arrived. Howard told Jesse, “She’s no good. She’s worthless.” Howard asked Jesse to leave so he could “talk” to his wife.
As soon as Jesse left, Howard slapped Sharon. Howard then threw a can at Sharon, hitting her in the head; blood was “gushing” out of her head. He then tossed her onto the couch and hit her in the arm and leg with a hammer. Sharon was able to get to the bathroom, wash the blood away, and stop the bleeding, but when she came out of the bathroom Howard started hitting her again and her head once again began bleeding.
Sharon went outside to where Jesse was standing by his truck. She asked Jesse to take her back to her niece’s house and he did. The police were contacted and Sharon was transported to the hospital for treatment. The gash in her forehead had to be stapled closed and Sharon experienced pain in her head, arm, and leg. She was still experiencing pain at the time of the preliminary hearing two months later.
Howard was charged with inflicting corporal injury on a spouse. It also was alleged that he had served five prior prison terms.
On February 3, 2016, Howard signed a felony advisement of rights, waiver, and plea form. The plea agreement called for Howard to plead to a violation of section 273.5, subdivision (a) and three prior prison term enhancements, in exchange for dismissal of the remaining enhancements and an agreed sentence of seven years.
The plea form set forth all of Howard’s constitutional rights; that he was waiving those rights; and stated there was a factual basis for the plea. Howard initialed each of the applicable boxes on the form. Above Howard’s signature on the form is the following statement:
“I have personally read and initialed each of the above items that apply to my case. I have discussed these items with my attorney and my attorney has answered all of the questions I have about this plea. By putting my initials next to the items in this form, I am indicating that I understand and agree with what is stated in each item that I have initialed. The nature of the charges, the possible defenses, and the effects of any prior convictions, enhancements and allegations have been explained to me. I understand each of the rights outlined above, and I give up each of them as to the charged offenses as well as any enhancements and allegations to enter my plea.”
At the February 3, 2016, hearing, the trial court went through the form with Howard, first verifying that Howard initialed and signed the form. The trial court then proceeded to verbally inform Howard of his constitutional rights and accept a waiver of those rights. There was a stipulation to a factual basis for the plea. Howard then pled no contest to one count of violating section 273.5, subdivision (a) and admitted three enhancements pursuant to section 667.5, subdivision (b).
At the March 9, 2016, sentencing hearing, the trial court imposed the upper term of four years for the substantive offense, and an additional one year for each of the three enhancements, to be served consecutively, for a total term of seven years in prison, in accordance with the plea agreement. Custody credits of 152 actual days and 152 conduct days for a total of 304 days were awarded. Various fines and fees were imposed.
The felony abstract of judgment was filed March 15, 2016, and accurately sets forth the oral pronouncement of judgment. On March 29, 2016, Howard appealed.
DISCUSSION
Appellate counsel was appointed for Howard on May 13, 2016. On August 3, 2016, appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436. That same day, this court issued its letter to Howard inviting him to submit supplemental briefing. No supplemental brief was filed.
In his notice of appeal, Howard argued that terms for the three enhancements should not have been imposed. On the contrary, Howard admitted the three enhancements as part of his plea bargain and agreed to a seven-year term of imprisonment as a total sentence. If no term of imprisonment was imposed for the three enhancements, the total prison term would be no more than four years.
Regardless of Howard’s reason for arguing no term of imprisonment should be imposed for the three enhancements, he obtained the benefit of his plea bargain and must adhere to the bargain he made. Where defendants have pled in exchange for a specified sentence, as Howard did here, defendants may not seek to better the bargain by challenging a sentence, even an unauthorized sentence, so long as the trial court did not lack fundamental jurisdiction. (People v. Hester (2000) 22 Cal.4th 290, 295.) By entering into the plea bargain, “it may be implied that the defendant waived any such rights under such rules.” (Ibid.)
Furthermore, Howard’s dissatisfaction with his plea agreement is nothing more than a case of “buyer’s remorse.” Buyer’s remorse regarding a plea agreement does not constitute good cause to set aside a plea. (People v. Simmons (2015) 233 Cal.App.4th 1458, 1466.) The trial court imposed sentence in accordance with the terms of the plea agreement; therefore grounds to set aside the plea pursuant to section 1192.5 are not present. (People v. Masloski (2001) 25 Cal.4th 1212, 1223-1224.)
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.