P. v. Abney
Filed 7/17/12 P. v. Abney CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
BRYAN ABNEY,
Defendant and Appellant.
B235423
(Los Angeles
County
Super. Ct.
No. BA377273)
APPEAL from
a judgment of the Superior Court
of
County.
Ronald S. Coen, Judge.
Affirmed.
Alex
Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
_______________
Defendant and appellant Bryan Abney pled no contest to
one count of inflicting corporal injury on
a spouse or cohabitant (Pen. Code, § 273.5), and admitted that he had
inflicted great bodily injury during the commission of that offense. (Pen. Code, § 12022.7, subd. (e).) He was sentenced to a total of seven years in
state prison. This appeal followed.
We
appointed counsel to represent him on
appeal. After examination of the record,
counsel filed an opening brief in which no issues were raised. On March
5, 2012, appellant's counsel advised appellant that he intended to
file such a brief, advised appellant that he could submit a
transmitted a copy of the record on appeal to him. In addition, we advised appellant that he had
30 days in which to submit by brief or letter any argument or contention he
wished this court to consider. In
response, on April 5, 2012,
we received a letter from appellant setting forth various contentions.
We begin
our review with the evidence at the preliminary hearing: The offense was alleged to have been
committed on October 12, 2010
and the victim was appellant's cohabitant, Yolanda V.
On that
date, a police officer observed Yolanda V. in the hospital. The officer observed blood on Yolanda V.'s
face, hands, and pants, and lacerations to her lips. She appeared to be scared, and complained of
pain. Yolanda V. told the officer that
appellant had assaulted her. She was in
the back seat of his car, and when she tried to leave, he grabbed her arm and
punched her in the face several times.
He threw her purse out of the car, then went to get it. She got into the driver's seat, in an attempt
to leave. Appellant punched the driver's
side window, causing glass to shatter and cut her face. Yolanda V. also told the officer about a
prior incident of domestic violence.
A second
police officer who conducted a phone interview with Yolanda V. testified that
she said that she had sustained a fractured nose and had required six sutures
to her upper lip, because of this incident.
Because
they are relevant to appellant's contentions, we also set out the facts
relevant to appellant's plea.
When the
case was called for trial, the court heard motions in limine and other
preliminary matters. A recess was then
taken. When the case was called again,
the court said, "I understand counsel wishes to place on the record the
offer that was made by the people. . . . I understand the people offered eight
years, is that correct" The deputy
district attorney answered, "yes."
The court said, "And the people were willing to consider and take
to the superiors their offer of seven years, is that correct" The district attorney again answered,
"yes." Then, through colloquy
with the district attorney, defense counsel, and appellant himself, the court
established that appellant had rejected offers of eight years and of seven
years, and was willing to plead only if the offer was six years, an offer which
was not acceptable to the People.
Defense
counsel asked appellant "do you want to take the seven" Appellant said that he would agree to a six
year sentence, and the district attorney agreed to convey the offer. A recess was taken.
When the
case was called, the court noted its understanding that a disposition had been
reached, and asked the district attorney to describe it for the record. The district attorney did so: Appellant would plead to the offenses
detailed above, waive "back time," and receive a total term of seven
years. Other offenses charged in the
information would be dismissed. Defense
counsel stated his agreement to this disposition, as did appellant.
The court
then questioned appellant and advised him of his rights. Appellant waived his rights, informed the
court that he was pleading no contest after fully discussing the case with his
attorney, and that he was entering a plea because he believed that it was in
his best interest to do so.
Before
sentencing, appellant moved to withdraw his plea on the ground that he was
pressured into entering the plea, and believed that the plea was not in his
best interest. The court found no ground
for withdrawal, but that appellant had presented only a case of "buyer's
remorse." The motion was denied and
appellant was sentenced in accord with the agreement.
On appeal,
appellant again asserts that he was not given sufficient time to consider the
prosecution's offer, that he entered the plea because he felt pressured, and
that he entered the plea because he feared a long prison sentence if he did not
plead guilty. He also asserts that he
did not commit the crime. He asks us to
review Yolanda V.'s testimony at an Evidence Code section 402 hearing. In that testimony, Yolanda V. testified that
appellant did not cause her injuries, that she had asked the police to drop the
case, and that she wished that she had never talked to the police.
We have
examined the entire record and are satisfied that appellant's attorney fully
complied with his responsibilities and that no
v. Wende (1979) 25 Cal.3d 436, 441.)
Moreover, after careful examination, we find no legal merit in
appellant's claims of errors.
Appellant
was represented by counsel, and further, personally took part in on-the-record
plea negotiations. The court informed
appellant of the prosecution's offer, informed appellant that "I am not
pushing one way or the other. If you are
not interested, that's fine, . . ." and, in taking the plea, specifically
asked appellant if he needed more time to talk to his lawyer. Appellant said that he did not. There is no evidence that the plea was other
than voluntary and informed, and ample evidence that it was voluntary and
informed. There is no ground for
reversal.
Disposition
The
judgment is affirmed.
ARMSTRONG,
Acting P. J.
We concur:
MOSK,
J. KRIEGLER,
J.
