P. .v Hardin

Filed 7/31/07 P. .v Hardin CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Senteza Pierre Hardin appeals from a final judgment disposing of all issues between the parties. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally.

A felony complaint was filed by the Sonoma County District Attorneys Office on January 5, 2006, charging appellant with two counts of assault with a deadly weapon by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)). The victims of the assaults were alleged to be Fabian Rivera and Manuel Rivera, respectively. Both assaults were alleged to have occurred on January 1, 2006. The complaint also alleged that appellant inflicted great bodily injury on both victims, within the meaning of Penal Code section 1192.7, subdivision (c)(8). Enhancements for the use of a deadly weapon were also alleged as to both counts.

On May 18, 2006, appellant entered a change of plea, pleaded guilty to both counts, and admitted the enhancements. The plea form appellant signed and initialed confirmed that he understood and waived his constitutional rights to a jury trial, to call witnesses and to confront witnesses called against him, and the right not to incriminate himself. He also acknowledged that, as a result of his plea, among other consequences, he could be sentenced up to 13 years in state prison, followed by parole of 3 to 4 years. He also acknowledged that, if he was not a U.S. citizen, his plea would result in his deportation. The plea was taken in open court with appellants counsel present.

Appellants counsel filed a sentencing brief requesting that probation be granted, although it was acknowledged that the probation department had recommended that appellant be sent to the California Department of Corrections (CDC) for a 90-day evaluation, pursuant to Penal Code section 1203.03, and that probation could be granted only upon a finding of unusual circumstances. Following a hearing held on July 27, 2006, the court ordered that appellant be placed temporarily with the CDC for evaluation and diagnostic purposes. CDC was ordered to make its diagnosis and sentencing recommendation to the court within 90 days.

A report dated October 19, 2006, was prepared by the CDC in which it concluded that appellants conduct had escalated to the point where he represented a danger to society. Therefore, a state prison sentence was recommended. Further documents were thereafter provided to the court by appellants counsel in support of his request for probation. A probation report was filed on December 12, 2006, which recommended that probation be denied, and appellant be sentenced to a term of 9 years 4 months in state prison, and to pay restitution.

At sentencing, after hearing from the two victims, from appellants father, and the arguments of counsel, the court denied probation and sentenced appellant to the midterm of three years state prison for the assault in count one, a consecutive term of 3 years for the great bodily injury enhancement included with count one, and a further consecutive term of 1 year for the use of a deadly weapon, for an aggregate term of 7 years in state prison. The court imposed the same sentence of 7 years for count two, including its enhancements, but ordered that sentence to be served concurrent to the one imposed for count one. Appellant was also ordered to pay restitution of $1,800, and he was awarded custody credits totaling 162 days.

On December 18, 2006, the court held a further hearing at which time the 1-year weapon use enhancements were stricken, and appellants aggregate term was reduced to 6 years state prison for each count, again with the sentence to be served concurrently. The abstract of judgment was amended accordingly.

Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. We discern no error in the sentencing. The refusal to grant probation and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.

DISPOSITION

The judgment is affirmed.

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Ruvolo, P. J.

We concur:

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Reardon, J.

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Rivera, J.

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