Filed 10/16/17 P. v. Sanchez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Javier Eduardo Sanchez appeals a judgment entered upon his plea of no contest to assault with force likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(4).) His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has been apprised of his right to personally file a supplemental brief, but he has not done so.

At the time of the offense, defendant was serving a sentence in the Napa County jail. The victim of the offense reported that he was placed in a cell with defendant and another man, Jesse James Monreal, whom he did not know. Defendant immediately asked the victim for his “paperwork,” and questioned him about his gang status. The victim said he associated with people in Napa. Defendant spoke with the resident of a nearby cell, who told him the victim was a “snitch” regarding a gang-related shooting. Defendant punched the victim violently in the face multiple times, and Monreal joined the attack. Defendant then turned off the lights in the cell, grabbed a plastic chair, and threw it at the victim. The chair shattered when it hit him. Defendant picked up a broken piece of the chair and continued to hit the victim. The victim was taken to a hospital. His eyes were nearly swollen shut, his left eye was black, his lips and head were swollen, and his nose was swollen and bruised.

Defendant and Monreal were charged with dissuading a witness by force or threat (Pen. Code,[1] § 136.1, subd. (c)(1), count one); conspiring to dissuade a witness (§ 136.1, subd. (c)(2), count two); threatening a witness (§ 140, subd. (a), count three); assault with a deadly weapon, to wit, a chair (§ 245, subd. (a)(1), count four); assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count five); and assisting a street gang in felony criminal conduct (§ 186.22, subd. (a), count six). The complaint included enhancement allegations for prior prison terms, prior serious felonies, use of a deadly weapon, great bodily injury, and participation in a street gang.

It appears that at the time of the current offense, defendant was serving sentences for robbery (§ 211), first degree burglary (§§ 459, 460), resisting a peace officer (§ 148.10, subd. (a)), and assault for the benefit of a criminal street gang (§§ 240, 186.22, subd. (d)).

Pursuant to a negotiated disposition, defendant pled no contest to count five, assault by means likely to produce great bodily injury, which had a maximum term of four years and a maximum penalty of $10,000. (§ 245, subd. (a)(4).) He admitted special allegations for use of a deadly weapon, with an additional penalty of one year (§ 12022, subd. (b)(1); committing a felony for the benefit of a criminal street gang, with an additional penalty of five years (§ 186.22, subd. (b)(1)(B)); and a prior prison term (§ 667.5, subd. (b)). The agreement contemplated a prison term of four years in state prison, consecutive to the terms he was serving at the time of the offense.

At the hearing on the plea agreement, the trial court asked defendant’s counsel if he had advised defendant he might be serving his sentence “at 85 percent time.” Counsel replied, “Yes, I have,” then told the court that defendant would ordinarily receive 50 percent conduct credits for his offense; however, because the sentence would be consecutive to one defendant was already serving for a violent felony, he might have to serve 85 percent of his current sentence.[2] The court noted, “It could be 50 percent. And depending upon his other case it could be 85 percent,” and asked if defendant understood. He replied, “Yes, I understand.”

Before being sentenced, defendant moved to withdraw his plea on the ground he had believed he would serve his sentence at 50 percent time. The trial court reviewed the transcript of the hearing on the plea and noted that defendant had indicated he understood that the sentence would be served at 85 percent time if it was consecutive to a case involving a violent felony. The court concluded there was no basis to allow defendant to withdraw his plea.

The trial court imposed a sentence of one year for count five (one-third the midterm), consecutive to his earlier sentences; four months for the deadly weapon enhancement (§ 12022, subd. (b)(1)); one year, eight months for the street gang enhancement (§ 186.22, subd. (b)(1)(B)); and one year for the prior prison term enhancement (§ 667.5, subd. (b)), for a total term of four years. The court also imposed fines and fees.

There are no meritorious issues to be argued.

DISPOSITION

The judgment is affirmed.

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Rivera, J.

We concur:

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Ruvolo, P.J.

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Kennedy, J.*