P. v. OConnor

Filed 2/26/09 P. v. OConnor CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

Pursuant to People v. Wende (1979) 25 Cal.3d 436, appellantwho had pled no contest to one count of inflicting corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a))[1] and did not request or receive a certificate of probable causehas asked this court to review the record below and determine if there are any arguable issues deserving of further briefing. We have done so, find none, and hence affirm the judgment entered below and the sentence imposed on appellant.

II. FACTUAL AND PROCEDURAL BACKGROUND

The following factual summary is taken from appellants Wende brief which, in turn, was taken from the Napa County Probation Departments pre-sentence report.

On July 10, 2008, appellant and his live-in girlfriend of approximately two months got into a verbal argument about his girlfriends involvement with another man. After the argument, appellant entered the bathroom while his girlfriend was sitting on the toilet, grabbed her hair, and punched her and slammed her head against the shelf behind the toilet repeatedly. Appellant had been drinking heavily at the time of the incident in question. When police officers responded to his girlfriends call two days later, they observed numerous bruises and abrasions on her body. Appellant expressed remorse for the incident but could not remember it.

On July 15, 2008, the Napa County District Attorney filed a criminal complaint against appellant charging him as noted above, and also alleging both a prior strike and a prior prison term. (See  1170.12, subds. (a)-(d) and 667.5, subd. (b).) At his arraignment later that day, the trial court appointed, over appellants objection, a public defender from the Napa County Public Defenders office.

On July 24, 2008, appellant entered into a negotiated disposition under which he pled no contest to the charge in exchange for a maximum prison term of three years and a dismissal of both charged enhancements. Prior to the entry of that plea, appellant waived his right to a preliminary hearing, and also acknowledged being advised of both the possible immigration consequences of his plea and his Boykin/Tahl[2]rights.

At a sentencing hearing held on September 22, 2008, the trial court denied appellant probation and sentenced him to a midterm of three years in state prison, with credit for 109 days served. The court also imposed a restitution fine of $200 and a court security fee of $20, and suspended imposition of a $200 parole revocation fee. (See, respectively,  1202.4, 1465.8, & 1202.45.)

On October 7, 2008, appellant filed a notice of appeal, but never applied for or received a certificate of probable cause.

III. DISCUSSION

Because of the lack of a certificate of probable cause, pursuant to section 1237.5 and rule 8.304 (b) of the California Rules of Court, the only issues reviewable by us on appeal are those which arose after entry of the plea. (Cal. Rules of Court, rule 8.304 (b)(4)(B).)

Under the mandates of section 1237.5 and California Rules of Court, rule 8.304(b), because a certificate of probable cause was never issued or even requested by appellant, the only conceivable issues on appeal are sentencing issues and any denial of a section 1538.5 motion. The latter is inapplicable here as the record before us reveals no section 1538.5 motion having been filed in the trial court and, in any event, appellant did not check the applicable box on his Notice of Appeal.

Regarding appellants sentence, it was, as already noted, the sentence specifically contemplated by the plea agreement which was signed and initialed by appellant and verbally agreed to by him in open court on July 24, 2008. Under the circumstances, and particularly considering appellants prior criminal record, the fact that he was on parole at the time of the charged offense, together with his Boykin/Tahl waiver, the trial court clearly did not abuse its discretion in denying appellant probation and sentencing him to the midterm for the crime to which he had pled no contest.

IV. DISPOSITION

The judgment and sentence are both affirmed.

_________________________

Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

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[1] All statutory references are to the Penal Code, unless otherwise noted.

[2]Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d. 122.