P. v. Ponce

P. v. Ponce

Filed 9/18/08 P. v. Ponce CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. JERRY LEE PONCE, Defendant and Appellant.

B205713 (Los Angeles County Super. Ct. No. KA080589)

APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel J. Buckley, Judge. Affirmed.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Jerry Lee Ponce appeals from the judgment entered following his plea of nolo contendere to the infliction of corporal injury on a cohabitant (Pen. Code, 273.5, subd. (a)),^[1]making criminal threats ( 422), and his admissions that he previously had suffered a conviction for a serious or violent felony within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had previously suffered a serious felony conviction within the meaning of section 667, subdivision (a)(1). The trial court sentenced Ponce to 12 years, 4 months in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

1. Facts.^[2]

On September 19, 2007, Jane Doe was living in an apartment on Grand Avenue in Covina. Ponce, who was Jane Does boyfriend at the time, was also living at the apartment. That evening, the two had an argument. Jane Doe left the apartment, went to her car, telephoned Ponce and told him to leave. However, when she returned to the apartment approximately 40 minutes later, Ponce was still there.

Jane Doe went into the bedroom, grabbed the telephone and attempted to again leave the apartment. This time Ponce followed Jane Doe out the door, grabbed her and pulled her back inside. He pushed Jane Doe onto the couch, got on top of her and placed one hand around her throat and the other over her mouth. As he began to choke her, Ponce told Jane Doe that she was a dead woman. Jane Doe was terrified.

Jane Doe was able to wiggle[] [her] head until she could get some air and she asked Ponce why he was doing this. Ponce then dragged Jane Doe into the bedroom, threw her on top of the bed and again began to choke her. At the same time, Ponce hit Jane Doe in the face and on the side of her head. Both of Jane Does eyes were blackened and her upper lip was cut and bleeding.

At one point, Ponce got off of Jane Doe and turned his back to her. She tried to jump out the second story bedroom window, but Ponce grabbed her from behind, pulled her back into the apartment and began to beat her. Ponce told Jane Doe that he had  nothing to lose  and that they were  not leaving [the] apartment alive.  Jane Doe was certain Ponce was going to kill her.

Approximately one-half hour after she had attempted to crawl out the window, Jane Doe heard voices outside the apartment. After knocking, a voice announced that it was the Covina Police Department. Ponce told Jane Doe to stay in the bedroom and to stay quiet.

Over an approximately three-hour period Ponce struck [Jane Doe] several times, choked [her] numerous times, dragged [her] back into [her] apartment twice when she attempted to leave and generally threw her around. As a result, Jane Doe suffered severe bruising and lacerations to her head, face and body.

2. Procedural History.

In an information filed on November 13, 2007, Ponce was charged with three counts of corporal injury to a spouse or cohabitant ( 273.5, subd. (a)), two counts of making criminal threats ( 422) and one count of dissuading a witness by means of force or threat of force ( 136.1, subd. (c)(1)). It was further alleged as to counts 1 through 6 that Ponce previously had suffered a conviction for voluntary manslaughter ( 192, subd. (a)) within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and had served a prior prison term ( 667.5, subd. (b)) for a conviction of the unauthorized driving or taking of a vehicle (Veh. Code,  10851, subd. (a)).

On December 14, 2007, Ponce entered into a negotiated plea agreement under the terms of which he would plead nolo contendere to one count of corporal injury to a cohabitant and one count of making criminal threats. In addition, Ponce would admit previously having been convicted of a strike and a serious felony. In exchange for his plea and admissions, Ponce would be sentenced to 12 years, 4 months in prison.

After waiving his right to a trial, the right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense and his privilege against self-incrimination, Ponce pleaded no contest to one count of inflicting corporal injury on a cohabitant in violation of section 273.5, subdivision (a) and one count of making criminal threats in violation of section 422. Ponce then admitted previously having been convicted of manslaughter in violation of section 192, subdivision (a) for purposes of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1).

The trial court sentenced Ponce to a term of three years, doubled to six years pursuant to the Three Strikes law, for his conviction of inflicting corporal injury on a cohabitant. For his conviction of making a terrorist threat, the trial court imposed one-third the mid-term doubled, or one year, four months, the term to run consecutively to the term imposed for inflicting corporal injury on a cohabitant. Finally, for his admission he had previously been convicted of a serious felony, the trial court imposed a consecutive term of five years in prison. In total, the trial court sentenced Ponce to 12 years, 4 months in prison. The trial court then dismissed the remaining counts and allegations.

As part of his plea agreement, Ponce waived all presentence custody credit. However, the trial court ordered Ponce to pay a $200 restitution fine ( 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine ( 1202.45) and a $20 court security fee ( 1465.8, subd. (a)(1)).

Ponce filed a timely notice of appeal on February 1, 2008.

This court appointed counsel to represent Ponce on appeal on May 30, 2008.

CONTENTIONS

After examination of the record, appointed appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed July 28, 2008, the clerk of this court advised Ponce to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Ponces counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We concur:

KITCHING, J.

ALDRICH, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The facts have been taken from the transcript of the preliminary hearing.