Filed 6/27/22 P. v. McGinnis CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This is an appeal from judgment after defendant Marcus Geroy McGinnis entered a no contest plea to felony corporal injury to a cohabitant and admitted one prior strike offense. Defendant received a total prison term of four years, representing the two-year low term on the felony count doubled to four years for the prior strike offense. He was awarded a total of 281 days of custody credits.

After defendant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende) in which she raises no issue for appeal and asks this court for an independent review of the record. (See People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Counsel attests that defendant was advised of his right to file a supplemental brief in a timely manner, but he declined to exercise such right.

Mindful that our review is limited to grounds for appeal occurring after entry of the plea (Cal. Rules of Court, rule 8.304(b)(2)), we have examined the entire record in accordance with People v. Wende. For reasons set forth post, we agree with counsel no arguable issue exists on appeal and, thus, affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 16, 2021, a criminal complaint was filed charging defendant with the following crimes: assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))[1] (count one); dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count two); domestic battery (§ 243, subd. (e)(1)) (count three); assault with a deadly weapon (§ 245, subd. (a)(1)) (count four); and corporal injury to a spouse, cohabitant and/or child’s parent (§ 273.5, subd. (a)) (count five). The information further alleged defendant had one prior strike offense within the meaning of section 1170.12, subdivisions (a)–(d).

It was revealed during the preliminary hearing that defendant and the victim lived together for nearly a year before the incident at hand, which began the evening of July 13, 2021. During an argument, defendant grabbed the victim’s arm and pushed her onto the couch. Eventually, the pair made up and went to bed. Shortly thereafter, they woke up and the fighting renewed. As his anger escalated, defendant grabbed and squeezed the victim’s throat, hurting her and preventing her from breathing properly. When he eventually let her go, defendant leaned over and bit the victim’s nose. The arguing continued. At some point, the victim picked up a knife to defend herself. Defendant reacted by retrieving a plastic pipe, which he used to repeatedly hit the victim on her leg, ribs and left ear. The victim sought help at a nearby veterinary hospital, and the police were called. Photographs were taken by the police later that day at the hospital. These photographs reflected injuries and/or redness on the victim’s left ear, nose, left leg and right arm.

On October 18, 2021, defendant entered a no contest plea to count five and the remaining counts were dismissed with a “Harvey waiver.”[2] Prior to sentencing, defendant requested probation with court-ordered drug treatment and moved to strike the prior strike offense pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court denied his motion, noting his criminal history and inability to stay crime-free for any significant length of time. The court also denied probation and, pursuant to the negotiated plea, sentenced defendant to the two-year low term for count five doubled to four years for the prior strike offense. The court awarded 281 days of custody credits[3] and imposed various fines and assessments. This appeal followed.

DISCUSSION

As mentioned ante, neither appointed counsel nor defendant has identified any actual issue for our review. Upon our own independent review of the entire record, we agree no actual issue exists. (People v. Wende, supra, 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738, 744.) Defendant, represented by competent counsel, pleaded no contest to count five, corporal injury to a cohabitant, and admitted a prior strike offense after stipulating to a factual basis for his plea. Pursuant to this negotiated disposition, the remaining counts were dismissed with a Harvey waiver. The trial court, relying on defendant’s stipulation to the factual basis for his plea, then sentenced him to a total prison term of four years, which included the two-year low term for the offense of corporal injury to a cohabitant doubled for his admission of one prior strike offense. The trial court also ordered defendant to pay victim restitution in an amount to be determined by probation and imposed a peaceful contact order for the victim’s protection; a $300 restitution fine; another $300 restitution fine, suspended unless parole is revoked; a $30 conviction assessment; and a $40 court operations assessment. The court awarded defendant 281 days of custody credits.

This sentence, including the custody credits, fines and assessments, was lawfully imposed after the trial court found in open court that defendant knowingly, voluntarily and intelligently waived his constitutional rights, pleaded no contest to the offense of corporal injury to a cohabitant, and admitted a prior strike offense. (See §§ 1016–1018, 1192.5; People v. Holmes (2004) 32 Cal.4th 439 [“The plain language [of § 1192.5] requires that some inquiry be made of defendant, and that the court must satisfy itself (1) that the plea is freely and voluntarily made and (2) that there is a factual basis for the plea”].) Defendant was thereafter informed of his right to file a supplemental brief in this appeal, but he declined to do so. On this record, having ensured he received adequate and effective appellate review, we affirm the judgment. (People v. Kelly, supra, 40 Cal.4th at pp. 109, 112–113.)

DISPOSITION

The judgment is affirmed.

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Jackson, P. J.

WE CONCUR:

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Simons, J.

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Burns, J.

A164146/People v. Marcus Geroy McGinnis

[1] Unless otherwise stated, all statutory citations herein are to the Penal Code.

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

[3] The custody time awarded consists of the following: 141 days of actual credit and 140 days of conduct credit.