P.v . Huerta

Filed 10/11/06 P.v . Huerta CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Gerardo Huerta appeals from a judgment of conviction and sentence after he entered a plea of nolo contendere. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

I. FACTS AND PROCEDURAL HISTORY

Huerta was charged by information with one count of making a criminal threat (Pen. Code, § 422) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)).^[1] The information also alleged that Huerta personally used a deadly or dangerous weapon in the commission of the section 422 offense (§ 12022, subd. (b)(1)). Further it was alleged that both offenses were serious felonies within the meaning of section 1192.7, subdivision (c).

The preliminary hearing transcript and police reports, as summarized in the probation report, describe the underlying incident as follows. On the morning of December 4, 2005, Huerta returned to his residence from work and discovered that his wife, Olga Hernandez, was not at home with their children. Around 7:30 a.m., Hernandez, who had gone to church to pray, checked her cell phone and noticed that she had 32 missed calls. As she was checking, another call came in, from Huerta. He sounded angry, asked where she was, and accused her of cheating on him. When Hernandez told Huerta that she was at church, he instructed her to wait there and said he was going to kill her. She was frightened, as Huerta had hit and threatened her in the past. Huerta arrived at the church in about five minutes and approached her. He repeated that he was going to kill her, pulled a kitchen knife from his sweatshirt, and held the sharp end near her stomach and ribs. Hernandez took hold of his wrist and pleaded with him to think about their children. He let go of the knife, and she put it into her sweatshirt. After Huerta walked a few steps away, she called 911 and the police arrived about a minute later.

On March 28, 2006, pursuant to a written plea bargain and after being advised of his legal and constitutional rights and consequences of his plea, Huerta entered a plea of nolo contendere to the assault with a deadly weapon charge and admitted that the offense was a serious felony within the meaning of section 192.7, subdivision (c)(23). The court found a factual basis for the plea. The prosecutor dismissed the section 422 count and the special allegation, and agreed not to file additional charges based on telephone calls Huerta made and letters he wrote while in jail. The parties also stipulated that Huerta would be placed on probation with no state prison sentence immediately imposed. Huerta was assisted by counsel and a Spanish-speaking interpreter, and his waiver form was provided and executed in Spanish.

After considering the probation report, on April 26, 2006, the court suspended imposition of sentence and placed Huerta on probation for a period of three years upon a number of conditions, including that he serve one year in county jail and pay a $200 restitution fine, $400 to a domestic violence fund, and $200 to a battered women’s shelter. Huerta received 144 days of credit for actual time in custody, plus 72 days of conduct credit, for a total of 216 days credit against his jail sentence.

This appeal followed. The notice of appeal raises only issues related to his sentence.

II. DISCUSSION

Appellant was represented by counsel throughout the proceedings. He was provided with appropriate translation services.

There was no sentencing error. Appellant’s sentence was consistent with the terms of his plea bargain. Appellant’s counsel requested that appellant be sentenced to the county jail time he had already served, but the court imposed a one year county jail sentence as a condition of probation. The record below confirms that the trial court read the probation report and considered all the facts bearing on the offense and the defendant. There is nothing in the record that indicates that the trial court abused its discretion in its sentencing choice. (See People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)

We find no arguable issues on appeal, and there are no legal issues that require further briefing.

III. DISPOSITION

The judgment is affirmed.

BRUINIERS, J.^*

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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

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