P. v. Dorough
Filed 8/5/13 P. v. Dorough CA1/5
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opinion has not been certified for publication or ordered published for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
and Respondent,
and Appellant.
A136784
(
Super.
Defendant
Jeremy Dorough appeals from an order revoking his probation and sentencing him
to prison. His court-appointed counsel
has filed a brief raising no issues, but seeking our independent review of the
record under
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable
issues and affirm.
BACKGROUND
Defendant
and Billy Cuda, a codefendant in the proceedings below, went to the home of
Gerald Bennett to retrieve computer equipment purportedly owned by
defendant. They beat Bennett with a
crowbar, causing him to suffer serious
facial injuries, and made threats to Bennett’s wife. Although the underlying circumstances are
disputed, it appears defendant had been involved in another altercation in which
Bennett had broken the windshield of defendant’s car.
Based
on the attack upon Bennett, defendant was charged with attempted murder,
aggravated assault and criminal threats,
along with weapon use and great bodily injury enhancement allegations. (Pen. Code, §§ 664, subd. (a), 422, 245,
subd. (a)(1), 12022, subd. (b)(1), 12022.7, subd. (a).)
attorney, under which he pled no contest to a single count of assault by means
of force likely to cause great bodily injury and admitted a great bodily injury
enhancement. (§§ 245, subd. (a)(1),
12022.7, subd. (a).) The written plea
agreement indicated defendant could receive a maximum sentence of seven years,
but “Prosecution agrees to mitigated term of 2 yrs + 3 year GBI enhancement for
a 5 year Lid/Top.†The court stated it
would consider probation, noting “the People’s top is just that, a top.†In taking the plea, the court advised
defendant, “[I]t indicates a maximum of seven years, and the People have agreed
to a top of five years, certainly if you are sentenced to prison then you would
get no more than five. But if you are
sentenced to probation, and later violate your probation, you could [serve] up
to seven years, certainly we are not expecting that to happen, do you
understand that?†Defendant indicated he
did. At the sentencing hearing, the
court imposed a prison sentence of seven years (the four-year upper term on the
assault count plus three years for the great bodily injury enhancement),
suspended execution of that sentence, and placed defendant on probation for
three years. Codefendant Cuda entered
into a similar plea agreement.
Defendant
was allowed to return to Louisiana
to live while on probation. About a year
and a half later, his probation was summarily revoked based on his use of
illegal drugs, missed appointments with his probation officer, and his driving
on a suspended license. Defendant admitted
the alleged violations and was sentenced to prison for the previously-imposed
seven-year term. The court rejected
defendant’s request to reinstate probation conditioned on his participation in
the Delancy Street
residential drug treatment program. The
court cited the brutality of the offense and noted defendant had been dishonest
with the court about having a drug problem.
DISCUSSION
As
required by People v. Kelly (2006) 40
Cal.4th 106, 124, we affirmatively note appointed counsel has filed a
defendant has been advised of his right to file a
file such a brief. We have independently
reviewed the entire record for potential error and find none.
Defendant
pled no contest to a violation of section 245, subdivision (a)(1) and admitted
a great bodily injury enhancement allegation under section 12022.7,
subdivision (a). The terms of the
agreement called for a “lid†or “top†of five years in prison, with the
understanding the court would consider a grant of probation. The court also advised defendant this
five-year “lid†or “top†would not apply if defendant violated probation, and
he would then face a maximum sentence of seven years in prison. The initial grant of probation and the
sentence ultimately imposed were consistent with the terms of the plea
agreement. Moreover, defendant did not
appeal from the judgment imposed at the original sentencing and has forfeited
any challenge to the seven-year sentence.
(People v. Ramirez (2008) 159
Cal.App.4th 1412, 1421.)
Defendant
admitted the alleged probation violation and has not obtained a certificate of
probable cause as is necessary to challenge the revocation based on that admission. (§ 1237.5.) The court’s decision to impose the
previously-suspended prison sentence rather than reinstating probation was not
an abuse of its broad discretion. (
899, 909-910.)
We
are satisfied defendant’s appointed attorney has fully complied with the
responsibilities of appellate counsel and conclude no
v. Robbins (2000) 528 U.S. 259, 283.)
DISPOSITION
The judgment is affirmed.
NEEDHAM,
J.
We concur.
SIMONS,
Acting P. J.
BRUINIERS,
J.
Code.
