Filed 4/22/21 P. v. Mason 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Appointed counsel for defendant Andrew Lee Mason has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record, we affirm the judgment.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

I. BACKGROUND

Defendant came up the driveway of one of his neighbors with a shovel in his hand. When the neighbor told him to get off his property, defendant chased him and threatened to kill him. He then hit the neighbor in the head with a shovel two or three times. When law enforcement officers responded to the scene, they saw the victim’s face covered in blood, and he had lacerations to the top of his head.

Defendant pled no contest to assault with a deadly weapon, a shovel (Pen. Code, § 245, subd. (a)(1))[1] and admitted he had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The parties agreed to a stipulated sentence of five years and the remaining counts and allegations were dismissed.

At the sentencing hearing, after considering the statements of the victim and his family, the court stated it would not accept the plea agreement. The court referred the matter back to probation and explicitly requested it consider defendant’s military service and service related disorders under section 1170.9. After reviewing that report, the court indicated a tentative sentence of seven years. Given that decision, the court gave defendant the opportunity to withdraw his plea. Defendant agreed to proceed with the plea with a seven year sentence.

The court sentenced defendant to an aggregate term of seven years, the upper term of four years on the assault with a deadly weapon and a consecutive three years on the great bodily injury enhancement. The court awarded defendant credit for 284 days of presentence custody credit. The court considered ability to pay and, finding defendant had no ability to pay, ordered defendant to pay only the minimum mandatory fines and fees: a $300 restitution fine (§ 1202.4), imposed and stayed an identical parole revocation fine (§ 1202.45), a $40 court security fee (§ 1465.8, subd. (a)), and a $30 court security fee (Gov. Code, § 70373). Defendant appealed without a certificate of probable cause.

II. DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief.

III. DISPOSITION

The judgment is affirmed.

/S/

RENNER, J.

We concur:

/S/

ROBIE, Acting P. J.

/S/

MURRAY, J.

[1] Undesignated statutory references are to the Penal Code.