P. v. Henderson

P. v. Henderson

Filed 8/20/08 P. v. Henderson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. LAVADIS NICONDA HENDERSON, Defendant and Appellant.

A120884 (San Mateo County Super. Ct. No. SCO64144)

Lavadis Henderson appeals from a judgment and sentence after a no contest plea. 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 to determine whether there are any arguable issues on appeal. We find no such issues and affirm.

BACKGROUND

The Offense

This case originated when a school official questioned defendants nine-year-old son about graffiti on school grounds. The boy (John Doe 1) admitted he had drawn the graffiti because he was angry about being whooped the previous night. John Doe 1 said his father hit him with an extension cord, and that this happened about every two days. The boy also said defendant hit his 11-year-old brother (John Doe 2). An examination by San Mateo County Child Protective Services (CPS) revealed at least three marks on John Doe 1s body consistent with being hit with an extension cord. John Doe 2, defendants stepson, told CPS that defendant hit him with an extension cord and a belt. A pediatrician who examined both boys concluded that the marks on their bodies were consistent with being struck by a cord.

Both boys were taken into the custody of CPS. In subsequent interviews they described an incident in which defendant hit them with a belt and an extension cord as punishment for fighting and breaking one of their sisters belongings. John Doe 1 watched John Doe 2 being hit and saw blood coming down his leg. The younger boy said he felt unsafe with defendant around.

The Legal Proceedings

The district attorney charged defendant with two counts of inflicting corporal punishment resulting in a traumatic condition upon a child (Pen. Code,  273d), two counts of causing a child to suffer under circumstances likely to produce great bodily harm ( 273a, subd. (a)), two counts of assault with a deadly weapon and/or with force likely to cause great bodily injury ( 245, subd. (a)) and misdemeanor violation of a restraining order ( 166). The information alleged that defendant personally used a dangerous or deadly weapon in the commission of certain of the offenses pursuant to section 12022, subdivision (b) and alleged that defendant had seven prior convictions making him presumptively ineligible for probation ( 1203, subd. (e)(4)), four prior strike convictions ( 1170.12), two prison priors ( 667.5, subd. (b)), and four prior serious felony convictions ( 667, subd. (a).)

Pursuant to a negotiated disposition, defendant pled no contest to two counts of inflicting corporal punishment resulting in a traumatic condition upon a child and admitted the probation ineligibility priors, two prison priors, and one strike prior. In return, it was agreed that defendant would not be sentenced to more than 12 years, eight months in state prison and that the sentencing court would consider striking the admitted strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

Defendant testified on his own behalf at the January 25, 2008, sentencing hearing. He first testified about a number of cases under investigation by law enforcement, for which the court closed the courtroom pursuant to Evidence Code section 1040. Then, in open court, defendant testified that he attended the Choices Recovery Program while he was in custody, sporadically from May 10, 2007, and continuously since October 2007. Within the Choices program he was attending parenting classes to learn to handle his anger without violence.

Defendant testified that he had only a third grade education and does not read or write well. He was attending a reading program in jail. He wanted to continue drug and parenting counseling while incarcerated and planned to continue treatment and therapy for as long as he needed it upon his release. He had recently married Emma Gonzalez, a preschool teacher, who he said has a very positive effect on him and does not use drugs.

Defendant testified that because he was abused as a child he never learned about nonviolent ways of parenting, such as talking to your children or time-outs. When he was a child his parents whooped him with extension cords and put him on cast-iron heaters, leaving scars and welts. Defendant started using marijuana when he was six years old; his drug problem was out of control. His current nine-month incarceration was the first time he had been in jail or prison and not used drugs.

Defendant admitted he laid his son on the bed and spanked him with an extension cord and that he now realized such conduct was unacceptable. He told the court he felt just awful about what he had done to his children and would take it back if he could. On cross-examination, he insisted this was the first time he hit his children with a belt or extension cord, although he said he had struck them before with his hands. Defendant told the probation officer he was on ecstasy during the incident.

Defendant married Ms. Gonzalez the week before the sentencing hearing. Ms. Gonzalez testified she was a substitute teacher and also worked at Target. She knew about defendants violent history and planned for him to seek professional help, attend church and classes with her, and do whatever he needed to change his life. Although she considered him to be a loving and wonderful father whose children adored him, she had not spoken with defendants sons since the day of the incident at John Doe 1s school more than eight months before.

After argument, the trial court denied defendants Romero motion based on the violence of defendants present and prior offenses. The court noted that defendant hit the children hard enough to draw blood and leave scars, and that this was not the first time he had done so. The court further observed that the strike, a 1993 offense which involved the rape, sodomy and oral copulation of two teenage girls, was extremely violent; recounted the brutality involved in defendants 1998 conviction for domestic violence; and noted that defendant had parole violations dating through 2005.

The court sentenced defendant to a total term of 10 years and 8 months in state prison, awarded 404 days of custody credits, imposed a $200 restitution fine and stayed a parole revocation fine in the same amount. Defendant was ordered to pay a $20 court security surcharge and undergo genetic marker testing. Defendant filed a timely appeal.

DISCUSSION

Defendants counsel has represented that he advised defendant of his intention to file a Wende brief in this case and of defendants right to submit supplemental written argument on his own behalf. Defendant has not done so. Defendant has also been advised of his right to request that counsel be relieved. This court has reviewed the entire record on appeal. No issue requires further briefing.

DISPOSITION

The judgment is affirmed.

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Siggins, J.

We concur:

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McGuiness, P.J.

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Pollak, J.

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