Filed 12/14/18 P. v. Sell CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

Appointed counsel for defendant Shawn Edward Sell has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We affirm the judgment.

Facts and Proceedings

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, 123-124.)

In April 2017, defendant pleaded no contest in case No. 17CF01490 to possession of methamphetamine for sale in March 2017. (Health & Saf. Code, § 11378.) A prior prison term allegation (Pen. Code, § 667.5, subd. (b))[1] was stricken, with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758. In May 2017, defendant was sentenced to the upper term of three years, with 540 days to be served in county jail and 548 days on mandatory supervision. (§ 1170, subd. (h).) The trial court imposed a $900 restitution fine (§ 1202.4, subd. (b)), a corresponding $900 parole revocation fine, suspended unless parole is revoked (§ 1202.45), a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), and a $150 drug program fee (Health & Saf. Code, § 11372.7). In addition, the trial court imposed a $40 court security fee (§ 1465.8), a $30 conviction assessment fee (Gov. Code, § 70373), and a probation report fee of $736 (§ 1203.1b). The terms of defendant’s mandatory supervision required him to obey all laws.

On August 4, 2017, while defendant was an inmate at county jail, defendant got into a physical fight with another inmate. The victim had been taunting defendant, and defendant punched the victim three times in the face. The two exchanged blows until correctional officers broke up the fight. The victim was treated at the hospital for a broken nose and fractured orbital rim and required five stitches above his eye.

In case No. 17CF03852, defendant was charged with battery with serious bodily injury. (§ 243, subd. (d); count 1.) It was further alleged defendant had a prior prison term. (§ 667.5, subd. (b).) In October 2017, defendant pleaded no contest to count 1. (§ 243, subd. (d).) The prior prison term allegation was stricken, with a waiver pursuant to People v. Harvey, supra, 25 Cal.3d at page 758. As part of the plea, the People agreed to not file any charges against defendant with respect to a separate group assault on the victim on September 5, 2017. During the plea hearing, the trial court found defendant in violation of his mandatory supervision in case No. 17CF01490 due to his failure obey all laws, and revoked mandatory supervision.

In November 2017, the trial court sentenced defendant to state prison for an aggregate term of four years eight months, as follows: (1) in case No. 17CF03852, the upper term of four years (§ 243, subd. (d)) and (2) in case No. 17CF01490, eight months (one-third the midterm) consecutive (Health & Saf. Code, § 11378). In case No. 17CF03852, the court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a corresponding $300 parole revocation fine, suspended unless parole is revoked (§ 1202.45), a $40 court security fee (§ 1465.8), and a $30 conviction assessment fee (Gov. Code, § 70373). The court confirmed the previously ordered fines and fees in case No. 17CF01490. The court awarded 468 days of custody credit.

Defendant filed a timely appeal and a certificate of probable cause was denied.

Discussion

Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no such communication from defendant.

We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

RAYE , P. J.

HOCH , J.