P. v. Turner
Filed 8/29/08 P. v. Turner CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JOHN WESLEY TURNER, Defendant and Appellant. | F054065 (Super. Ct. Nos. 163447, 175990, 176092) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Gary Paden, Judge.
George Bond, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
On April 26, 2006, appellant, John Wesley Turner, called his wife, R.T., asking how much money they had in the bank. When she told him he could not have the money in their bank account, Turner began calling her derogatory names. R.T. and Turner again began arguing when R.T. arrived home later and found the house had been destroyed. When Turner went to tell R.T.s children to get dressed, R.T. ran out of the house. Turner managed to grab her at the end of the driveway and pulled her back into the residence. As R.T. attempted to flee again, Turner hit her with a closed fist and choked her with his arm. R.T. managed to free herself and ran into an orchard and hid. This encounter left R.T. with scratches and three red marks on her face and neck, redness on her left cheek, and a red mark on her left arm. Turner left before police arrived but was arrested later that day (case No. 163447).
On May 1, 2006, the district attorney filed a complaint charging Turner with inflicting corporal injury on a spouse (Pen. Code, 273.5, subd. (a)).[1] The court also issued a restraining order prohibiting Turner from contacting R.T.
On December 7, 2006, Turner argued with R.T. again and hit her with a closed fist on her right eye, left cheek, and on the back of her head. Later, while R.T. was washing dishes, Turner began arguing with her and throwing dishes on the floor, breaking them.
On December 8, 2006, R.T. was talking to Turner in the bedroom when he became angry, slapped her on her left eye, and left the room. R.T. reported the incident to police on December 9, 2006. The officer who took the report observed that she had a large bruise on her right eye, a smaller bruise on her left eye, a bruise and swelling on her right cheek, and a bump on the back of her head. Turner was not arrested that day (case No. 176092).
On December 23, 2006, Turner entered R.T.s house at 9:00 p.m. through an unlocked, sliding glass door and held her against her will until the following day at 9:00 a.m. During that time, Turner sexually assaulted R.T. six to seven times, raping her and making her orally copulate him. Turner also made R.T. bend over and inserted methamphetamine in her vagina and rectum. When R.T. tried to call the police, Turner ripped the telephone cord from the wall. Turner fled and was arrested on December 27, 2006 (case No. 175990).
On December 29, 2006, in case No. 176092, the district attorney filed a complaint charging Turner with two counts of inflicting corporal injury on a spouse. ( 283.5, subd. (a).) Each count also alleged an on bail enhancement.
On February 9, 2007, the district attorney filed an amended complaint in case No. 175990 charging Turner with one count each of penetration with a foreign object (count 5/ 289, subd., (a)(1) ), first degree burglary (count 8/ 459), inflicting corporal injury on a spouse (count 9/ 273.5, subd. (a)), false imprisonment by violence (count 10/ 236), dissuading a witness (count 11/136.1, subd. (b)(1)), cutting a utility line (count 12/ 591), administering a drug (count 13/ 222), and misdemeanor cruelty to a child (count 14/ 273a, subd. (b)), and three counts each of forcible oral copulation (counts 1, 2, & 7/ 288a, subd. (c)(2)), and of spousal rape (counts 3, 4, & 6/ 262, subd. (a)(1)). Each count alleged an on bail enhancement, an administering drugs enhancement ( 12022.75), and that the offense charged was committed during a burglary and by administering drugs ( 661.61, subds. (a), (b), (d) & (e)).
On March 29, 2007, in case No. 175990, Turner pled no contest to first degree burglary (count 8) and inflicting corporal injury on a spouse (count 9). In each count Turner admitted an administering drugs enhancement and an on bail enhancement. In an unrelated case (case No. 140248), Turner pled no contest to misdemeanor making criminal threats ( 422) and misdemeanor exhibiting a deadly weapon ( 417, subd. (a)(1)) and was sentenced to time served. In case Nos. 176092 Turner pled no contest to two counts of inflicting corporal injury on a spouse and admitted an on bail enhancement in each count. In case No. 163447 Turner pled no contest to inflicting corporal injury on a spouse. In exchange for Turners pleas in these cases, the court agreed to impose a stipulated term of nine years and dismiss the remaining charges and enhancements.
Turner was originally represented by retained counsel. However, on August 13, 2007, the public defenders office filed a motion to withdraw plea on Turners behalf. In the declaration in support of the motion, Turner alleged that his plea was not entered knowingly and voluntarily because he spoke with his attorney only a few minutes before entering his plea, he had only a few minutes to decide whether to take the plea deal, and he was in a state of shock, confusion, and anxiety when he entered his plea. He also alleged that prior to the change of plea hearing he did not know he was being charged with first degree burglary or understand the nature of a section 12022.75 enhancement.
On September 18, 2007, the court denied Turners motion to withdraw his plea. It then relieved the public defenders office from representing Turner and he was again represented by retained counsel during the ensuing sentencing hearing. In case No. 175990, the court sentenced Turner to: 1) an aggregate nine-year term on count 8 consisting of the mitigated term of 2 years on his burglary offense, a five-year administering drugs enhancement, a two-year on bail enhancement; and 2) a concurrent, aggregate nine-year term on count 9 consisting of a two-year term on the inflicting a corporal injury on a spouse conviction, a five-year administering drugs enhancement, and an on bail enhancement. In case No. 176092, the court imposed concurrent, aggregate five-year terms in counts 1 and 2 consisting of the middle term of three years on Turners inflicting corporal injury on a spouse conviction in each count and a two-year on bail enhancement in each count. In case No. 163447, the court sentenced Turner to a concurrent, middle term of three years on his inflicting corporal injury on a spouse offense in that case.
Turner 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 (1979) 25 Cal.3d 436.) Turner has not responded to this courts invitation to submit additional briefing. However, our review of the record disclosed that Turners abstract of judgment erroneously cites section 12022.72 rather than section 12022.75 as the statutory basis for the administering drugs enhancement in count 9 of case No. 175990 and we shall direct the trial court to correct this error.
Following independent review of the record we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The trial court is directed to issue an amended abstract of judgment that shows that the administering a drug enhancement in count 9 of case No. 175990 was imposed pursuant to section 12022.75. The court is further directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
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*Before Wiseman, Acting P.J., Gomes, J., and Kane, J.
[1] All further statutory references are to the Penal Code, unless otherwise indicated.
