P. v. Saheed

Filed 10/11/06 P. v. Saheed CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

Abdul Saheed has filed an appeal limited to the sentence imposed upon him after entry of a final judgment of conviction based upon his plea of no contest. (Pen. Code, § 1237.)^[1] Appellant’s court-appointed counsel has filed a brief raising no legal issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

PROCEEDINGS BELOW

Appellant was on November 15, 2005 charged by information with assault with a deadly weapon and/or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)--count 1), infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)--count 2), criminal threats (§ 422--count 3), and false imprisonment by force or menace (§ 236--count 4). It was alleged that each of the charged offenses was committed while appellant was released from custody on bail or on his own recognizance on an earlier felony offense within the meaning of section 12022.1. Finally, it was alleged that appellant suffered two prior felony convictions, one of which was a serious felony (§§ 667, subd. (a), 1170.12, subd. (c)), as well as a prior juvenile offense.

On November 28, 2005, after he was advised of his rights by counsel and executed a written waiver of rights form, and was advised as well by the court as to the rights he would give up by entering a plea, appellant agreed to a negotiated disposition of his case. As contemplated by the agreement, appellant pled no contest to count 2 (§ 273.5, subd. (a)), infliction of injury on a cohabitant, and admitted a prior strike conviction (§ 211). The prosecution thereupon dismissed all of the other charges and appellant’s other prior convictions were deemed stricken. The court found a factual basis for the plea. It was also stipulated by the parties and the court agreed that appellant reserved the right to file a motion to dismiss, in the interests of justice, the prior strike conviction appellant had admitted, i.e., a so-called “Romero motion.” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

On January 20, 2006, the court denied appellant’s Romero motion and imposed sentence. The lower term of two years for the offense was doubled due to the prior strike, for a total of four years in state prison. The court imposed a restitution fund fine of $200 (§ 1202.4), and granted appellant 121 days of credit for time served, plus 60 days of good time credit.

FACTS

Appellant is a 39-year-old married father of three who, at the time of the offense, was living with his girlfriend. According to the report of the probation officer, “[o]n May 31, 2005, [appellant] prevented his girlfriend from leaving their residence, slapped her repeatedly about the head as he pinned her to the floor, held a knife to her throat and threatened to kill her. He eventually let her up, but continued to behave bizarrely. The victim was terrified and believed [appellant] was going to kill her and then himself. She wanted desperately to leave the residence, but [appellant] took her cellular telephone, her car keys and locked the doors to the residence. The victim was eventually able to convince [appellant] to take her out of the apartment so that she could get cool air on her face to abate the swelling. When they left the apartment, [appellant] took a steak knife with him and he held the victim’s hands behind her back. Once outside the apartment, the victim began screaming and yelling for someone to help her and call 911. When [appellant] saw witnesses, he let go of the victim. The victim then saw [appellant] raise the knife as if he was about to attack her with it. The victim was able to knock the knife out of [appellant’s] hand and [appellant] ran from the area. The following day [appellant] was found hiding in the laundry room of the apartment complex.” The probation report also notes that, prior to the instant offense, appellant was a chronic methamphetamine and alcohol user.DISCUSSION

As earlier indicated, because appellant was convicted on the basis of a negotiated plea, this appeal is limited to the propriety of the sentence imposed. The trial court possessed broad discretion to grant or deny appellant’s Romero motion, and we cannot say denial of the motion was an abuse of discretion. Because the court’s denial of the motion left appellant with a prior serious felony, he was ineligible for probation. The prison term imposed, which was based on the mitigated term specified for the offense to which appellant pled no contest, fully complied with the terms of the plea agreement.

Appellant’s mental competence to enter his plea is not questionable, and there is no reason to believe the plea was not voluntary or that appellant was insufficiently advised by counsel and the court as to the rights waived by the plea.

Appellant was represented by counsel throughout the proceedings.

There was no sentencing error.

There are no legal issues that require further briefing.

DISPOSITION

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.