Filed 2/1/13 P. v. Conway CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
DONALD MICHAEL CONWAY,
Defendant and
Appellant.
F064166
(Super.
Ct. No. CRF35746)
APPEAL
from a judgment of the Superior Court of Tuolumne County. Eric L. DuTemple, Judge.
Deborah
Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
On September 20, 2011, appellant,
Donald Michael Conway, pled guilty to elder abuse (count II/Pen. Code, § 368,
subd. (b)(1))
title="">[1] and making criminal threats
(count III/Pen. Code, § 422) and admitted a personal use of a firearm
enhancement (§ 12022.5, subd. (a)) in count II.
On October
24, 2011, the court sentenced appellant to an aggregate term of seven years
eight months, the middle term of three years on the elder abuse count, the
middle term of four years on the arming enhancement in that count, and an
eight-month term (one-third the middle term of two years) on the criminal
threats count.
Following
independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant
lived with his 77-year-old father in Sonora in his father’s mobile home. On May 24, 2011, appellant’s father was
having a satellite dish installed at a residence he purchased located next to
his mobile home when appellant began arguing with him over the father’s plan to
take the television out of the mobile home.
After appellant’s father told him that installers were there and he was
going to let them do the work, appellant told his father that he was going to
“blow [his] head off†and left. Five
minutes later, while appellant’s father was on the back deck of the residence
he purchased, appellant returned with a handgun and pointed it at his
father. Appellant’s father ran into the
house and locked the door. Appellant
then fired three shots at the door that went through the handle and lock, but
did not strike his father. Appellant’s
father ran out the front door to a neighbor’s house and called the Tuolumne
County Sheriff’s Department. During a
search of appellant’s room in the mobile home, the deputies found ammunition
and two firearms, including an assault rifle.
Appellant
fled but was arrested in Nevada on June 16, 2011.
On June 14,
2011, the district attorney filed a complaint charging appellant with assault
with a firearm (count I/§ 245, subd. (a)(2)), elder abuse (count II),
criminal threats (count III), shooting at an inhabited dwelling (count
IV/§ 246), possession of an assault weapon (count V/§ 12280, subd. (b)),
possession of a firearm by a felon (count VI/§ 12021, subd. (a)(1)), and
possession of ammunition by a felon (count VII/§ 12316, subd. (b)(1)). Counts I, II, and III also alleged a personal
use of a firearm enhancement.
On July 29,
2011, appellant waived a preliminary hearing and the complaint in this matter
was deemed an information.
On
September 19, 2011, the court heard and denied appellant’s Marsden
title="">[2] motion.
On
September 20, 2011, as part of a plea bargain, appellant entered his guilty
plea to the elder abuse and criminal threat counts and admitted the personal
use of a firearm enhancement with respect to the elder abuse count. Appellant’s plea bargain provided that the
remaining counts would be dismissed and appellant would receive a stipulated
term of seven years eight months and that appellant waived his right to
appeal.
On October
24, 2011, the court sentenced appellant to an aggregate term of seven years
eight months in accordance with his plea agreement.
Appellant’s appellate counsel has
filed a brief which summarizes the facts, with citations to the record, raises
no issues, and asks this court to independently review the record. (People
v. Wende, supra, 25 Cal.3d 436.) Appellant has not responded to this court’s
invitation to submit additional briefing.
Following
an independent review of the record we find that no reasonably arguable factual
or legal issues exist.
DISPOSITION
The judgment is affirmed.
Code.
