P. v. Smith

Filed 8/28/07 P. v. Smith CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant Gary Duane Smith pled guilty to inflicting corporal injury upon a former cohabitant, a violation of Penal Code[1] section 273.5, subdivision (a), and he admitted an allegation that he had suffered one prior strike. The trial court sentenced him to eight years in state prison. Appellants court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.

Factual and Procedural Background

Stacy Davis had an intimate relationship with appellant and had lived with him in the past. On June 28, 2006, Davis woke up from a nap to find appellant inside her cabin. After she asked him to leave, he became upset, struck her, and began to choke her. She lost consciousness and urinated on herself. A police officer who responded to the incident reported seeing bruises on Daviss neck consistent with her being choked. The officer also observed bruises on Daviss temple and arms.

Following a preliminary hearing, the Lake County District Attorney filed a three-count information on October 20, 2006, charging appellant with assault by means of force likely to produce great bodily injury, in violation of section 245, subdivision (a)(1) (count 1), inflicting corporal injury upon a former cohabitant,[2] in violation of section 273.5, subdivision (a) (count 2), and battery upon another person resulting in the infliction of serious bodily injury, in violation of section 243, subdivision (d) (count 3). As to all counts, the People alleged that appellant personally inflicted great bodily injury upon the victim, in violation of section 12022.7, subdivision (e). It was further alleged as to all counts that appellant had suffered two prior strike convictions, within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) though (d). As to all counts, the People further alleged that appellant had suffered one prior conviction for a serious or violent felony within the meaning of section 667, subdivision (a)(1), and that he had served a prior prison term within the meaning of section 667.5, subdivision (b). It was further alleged that appellant had suffered five prior felony convictions within the meaning of section 1203, subdivision (e)(4), thereby rendering him ineligible for probation except under certain conditions.

On December 5, 2006, pursuant to a plea agreement, appellant pled guilty to inflicting corporal injury upon a former cohabitant ( 273.5, subd. (a)), and he admitted suffering one prior strike pursuant to the Three Strikes Law ( 667, subds. (b)(i), 1170.12, subds. (a)(d)). In exchange for the plea, the remaining counts and special allegations were dismissed with a Harveywaiver.[3]

Before appellant entered his plea, the trial court advised him of the constitutional rights he would waive by agreeing to the plea bargain. The court also advised him of the consequences of his plea, including that he could face up to eight years in state prison. Appellant was further advised a court could impose a fine plus a penalty assessment of up to $21,000, plus the court could impose a restitution fine up to $10,000. Appellants trial counsel stipulated to a factual basis for the plea based on the preliminary hearing transcript. The court accepted the plea, finding that appellant had made a knowing, voluntary, and intelligent waiver of his rights, and further finding there was a factual basis for the plea.

On January 2, 2007, appellant moved to strike his remaining prior strike under section 1385 and to reduce the charge of inflicting corporal injury on a former cohabitant to a misdemeanor under section 17, subdivision (b)(3). The court denied appellants motion in its entirety, stating its reasons on the record.

At the sentencing hearing on February 22, 2007, the trial court denied probation and sentenced appellant to eight years in state prison, calculated as follows. On count 2 ( 273, subd. (a)), appellant received the upper term of four years, doubled to eight years pursuant to the Three Strikes Law ( 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court imposed a restitution fine under section 1202.4, subdivision (b), of $1,600, plus a parole revocation fine under section 1202.45 in the same amount, stayed unless appellants parole is revoked. Appellant was further ordered to pay a $20 court security fee ( 1465.8). He received presentence custody credits totaling 360 days, composed of 240 days of actual custody plus 120 days conduct credits under section 4019.

As justification for imposing the upper term on appellants conviction for inflicting corporal injury on a former cohabitant ( 273.5, subd. (a)), the trial court cited the aggravating factor of appellants very serious criminal record. The court stated: I am not considering any other aggravating circumstances other than the record of prior convictions. So when I say hes got this serious criminal record earlier outlined Im only considering convictions, which, as I understand it under Cunningham [v. California(2007) 549 U.S. ___ [127 S.Ct. 856]], is properly considered by the court. And I find that those far outweigh any circumstance or circumstances in mitigation. The probation officers report reflects that appellant has at least five prior felony convictions plus numerous misdemeanor convictions.

Appellant filed a timely notice of appeal. He did not seek a certificate of probable cause.

Discussion

Appellants counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so.

Having reviewed the entire record, we conclude there are no arguable issues that warrant further briefing.

Disposition

The judgment is affirmed.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Horner, J.*

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] At the preliminary hearing, the court observed that appellant had cohabited with Davis in the recent past, permitting Davis to be treated as a former cohabitant under section 273.5, subdivision (a).

[3]People v. Harvey(1979) 25 Cal.3d 754.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.