Filed 9/19/17 P. v. Sharp CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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In this consolidated appeal, appointed counsel for defendant Brandon Sharp filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we affirm the judgment.

Facts and Proceedings

We provide the following brief description of the factual and procedural background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) The following summary of facts is based on the preliminary hearing transcript, which the parties stipulated provided the factual basis for defendant’s plea.

In May 2016, Jay Tweedie was a tow truck driver for BG & Son, a private towing and transportation company. Around 10:00 or 11:00 p.m. on May 10, 2016, Tweedie towed defendant’s car. Later that night, defendant called the towing company and was informed by Tweedie that his car had been towed because it was parked in a red zone. Tweedie also informed defendant how he could get his car back. When defendant was told he needed to pay $243 dollars, he said that he was going to “take $243 out of someone’s ass in the morning.”

When Tweedie arrived at work the next morning, he advised two of his coworkers to be careful with defendant because he believed defendant had been sincere about what he threatened to do. Later that morning, defendant came to the tow yard and was assisted by David Reynolds. Defendant filled out paperwork and paid to have his car released. However, he refused to sign the invoice until he inspected his car. When Reynolds told defendant that he needed to sign the paperwork in order for his car to be released, defendant got “a little angry” and unsuccessfully attempted to enter the tow yard through the gate. Eventually, defendant signed the invoice and the gate was opened for him.

Upon entering the tow yard, defendant immediately went into Reynolds’s office. When Reynolds told him to “get the fuck out,” defendant got in Reynolds’s face and bumped into him. Reynolds then pushed defendant. In response, defendant hit Reynolds in the face twice. Reynolds fell to the ground and defendant jumped on his back and choked him so hard he could not breathe. One of Reynolds’s coworkers jumped on defendant’s back and told another employee to “[g]rab the bat.” After the coworker grabbed the bat, defendant let Reynolds go. Reynolds then pulled out a gun, pointed it at defendant, and said, “[Y]ou need to get the fuck out.”

Prior to driving his car out of the tow yard, defendant said, “I’m going to come back and kill all of you, including your dog.” After leaving the tow yard, defendant parked his car, walked back onto the property, and attempted to approach Reynolds. When he was told to stay off the property by one of Reynolds’s coworkers, defendant replied, “I have unfinished business with the other individual.” Shortly thereafter, the police arrived.

Defendant was charged by amended information with making a criminal threat (Pen. Code, § 422, subd (a); unless otherwise set forth, statutory section references are to the Penal Code), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)), and commercial burglary (§ 459). It was also alleged that defendant had two prior convictions that qualified as strikes under the three strikes law (§§ 667, subd. (d); 1170.12, subd. (b)), a prior serious felony (§ 667, subd. (a)(1)), and had served two prior prison terms (§ 667.5, subd. (b)).

Defendant pleaded guilty to the burglary charge and the remaining charges and enhancements were dismissed. The trial court sentenced him to two years in prison and ordered him to pay various fines and fees. Defendant filed a timely notice of appeal. His request for a certificate of probable cause was denied.

Less than two months after sentencing, defendant filed a petition for resentencing pursuant to section 1170.18, subdivision (a), which was denied. Thereafter, defendant filed a timely notice of appeal.

On March 30, 2017, we granted defendant’s motion to consolidate his appeals. The appeals were consolidated for all further appellate procedures and decision.

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. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the 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. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

HULL , J.

We concur:

NICHOLSON , Acting P. J.

MAURO , J.