P. v. Gutierrez

Filed 7/9/09 P. v. Gutierrez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Edward Dallas Gutierrez appeals from a judgment entered upon his plea of no contest to a charge of infliction of corporal injury upon a cohabitant. His court-appointed attorney has filed a brief raising no legal issues and asking this court to conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436.

PROCEEDINGS BELOW

On October 17, 2008, after appellant waived his right to a preliminary hearing, the Lake County District Attorney filed an information charging him with one felony count of inflicting corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a)).[1] The information also alleged that appellants prior conviction for the same offense within the past seven years exposed him to the enhanced sentence authorized by subdivision (e) of section 273.5, namely, imprisonment in the state prison for two, four, or five years [and/or] a fine of up to $10,000. The information further alleged a prior strike ( 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and a prior prison term ( 667.5, subd. (b)), exposing appellant to additional sentencing enhancements.

On January 16, 2009, appellant entered into a negotiated disposition whereby he pled no contest to the corporal injury ( 273.5, subd. (a)) in exchange for a maximum prison term of six years and dismissal of the prior strike allegation. The change of plea form appellant executed reflects waiver of his Boykin/Tahl rights.[2]

The presentence report submitted by the probation department recommended the middle term state prison sentence four years for the underlying offense plus an additional year for the prior prison term.

Appellants wife testified at the sentencing hearing in support of his request for probation. Stating that she did not know why he pleaded guilty to assaulting her, she explained that, during an argument over his desire to go spend the rent money on weed, appellant ended up throwing the clock at the wall and it hit me in my face. She did not want him to go to prison because [h]es a great father. He was working. He had his own job going on for a while, so he was doing real good.

The trial court denied appellants oral request for reduction of the felony conviction to a misdemeanor ( 17, subd. (b)), citing his juvenile and adult records and anger management issues.

Pointing to appellants active participation in the offense, his numerous prior convictions, which were of increasing seriousness, his past poor performance on probation, and the fact that the instant offense was committed while he was on parole, and also the likelihood he would constitute a danger to others if not imprisoned, the court denied probation. Following the probation departments recommendation, the court imposed the four-year midterm plus a one-year enhancement for the prior prison term.

Additionally, the court directed appellant to comply with the protective order filed by the court on August 12, 2008, to pay a restitution fine of $1,000 ( 1202.4, subd. (b)), a parole revocation fine also in the amount of $1,000 ( 1202.45) which was stayed unless appellants parole is revoked, a court security fine in the amount of $20, and a conviction assessment fine in the amount of $30. The court awarded appellant 306 days of credit for time served.

Timely notice of appeal was filed on March 12, 2009.

FACTS

At the hearing at which appellant entered his plea, his attorney stipulated to the relevant facts as follows: On August 28th, 2008, law enforcement contacted a Miranda Miller [appellants wife] in the City of Clearlake regarding a domestic violence situation. Ms. Miller indicated that shes married to the defendant and that theyre living together. [] On August 8, 2008, an argument ensued on that day and the defendant threw a clock at Ms. Miller, it hit her face and caused bleeding and this would constitute a traumatic condition.

DISCUSSION

The record establishes that appellant understood the constitutional rights he waived and the consequences of his plea, and that he entered his plea freely and voluntarily.

The record also establishes a factual basis for appellants plea, the judgment entered thereon, and the sentence imposed.

Appellant was at all times represented by able counsel.

There is no basis in the record to question appellants mental competence to participate in the proceedings and enter his plea.

There was no sentencing error.

There are no legal issues that require further briefing.

The judgment and sentence imposed are affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Lambden, J.

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

[2] Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.