Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. NA085205
THE COURT:Frizzell Bell appeals his judgment of conviction of felony spousal abuse and two misdemeanor battery offenses. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On March 4, 2011, we notified defendant of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed, and defendant has submitted no brief or letter. We have reviewed the entire record, and finding no arguable issues, affirm the judgment.
On April 29, 2010, after a preliminary hearing, defendant was charged by information with seven felony counts. The information alleged that on March 16, 2010, defendant committed the following crimes against Nicole H. (Nicole): infliction of corporal injury on a cohabitant, in violation of Penal Code section 273.5, subdivision (a) (count 1); forcible oral copulation, in violation of section 288a, subdivision (c)(2) (count 2); forcible rape, in violation of section 261, subdivision (a)(2) (count 3); and false imprisonment, in violation of section 236 (count 4). The information alleged that defendant again inflicted corporal injury on Nicole, a cohabitant, in violation of section 273.5, on March 23, 2010, (count 5), and on March 28, 2010 (count 6). Defendant was charged in count 7 with dissuading a witness on March 28, 2010 by force or threat, in violation of section 136.1, subdivision (c)(1).
All further statutory references are to the Penal Code, unless otherwise indicated.
The information specially alleged as to all counts, for purposes of the “Three Strikes” law, sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), that defendant had suffered a juvenile adjudication of robbery, in violation of section 211, in 2003. Further, it was specially alleged, for purposes of the sentence-enhancing provision in section 667.5, subdivision (b), that defendant had been convicted in 2005 of sexual battery, in violation of section 243.4, subdivision (a), served a prison term for that offense, and failed to remain free of prison custody for a period of five years prior to committing the current offenses.
Nicole H. testified that defendant beat her on March 16, 23, and 28, 2010, and had beaten her twice before in their relationship. On March 16, defendant grabbed Nicole by the hair, threw her on the ground, punched her, slapped her, kicked her, threatened her, cursed her, and spit on her. She claimed that he also forced her to have vaginal intercourse. Nicole suffered a cut lip, a scratch across her face, bruises on her arms, and scabs on her knees. On March 23, 2010, defendant kicked Nicole in the face, and punched her in the face several times, giving her a black eye. On March 28, 2010, defendant punched and kicked Nicole in the face repeatedly, causing another black eye, a swollen face, bruises over her entire body, and bleeding from the nose and mouth.
In several recorded telephone conversations between Nicole and defendant while defendant was in jail, they discussed the charges and ways she might avoid testifying against him.
Defendant’s previous girlfriend, Autumn B., testified that defendant beat her during their relationship in 2004. One night, defendant forced her from her home, dragged her seven blocks into a park restroom, and raped her. After defendant was charged with rape, he attempted to dissuade her from testifying.
In addition to rape, defendant was also charged with kidnapping. He was permitted to plead nolo contendere to sexual battery, in violation of section 243.4, subdivision (a), and was sentenced to four years in prison.
Defendant testified in his defense that both Autumn and Nicole had lied. In lengthy testimony, he explained his version of each incident, denied having beaten or raped Nicole or Autumn, and claimed that all sex with the women was consensual. He also denied ever threatening Nicole or her family if she testified or called the police.
Defendant admitted that he was a registered sex offender, required to wear a tracking device on his ankle, and that in March 2010, he removed the device and absconded from parole supervision.
The jury convicted defendant of just one of the charged felonies, finding him guilty of inflicting corporal injury on a cohabitant, committed on March 23, 2010, as charged in count 5 of the information. The jury acquitted defendant of the offenses charged in counts 2, 3, 4, and 7. Rejecting the two felony offenses of corporal injury to a cohabitant charged in counts 1 and 6, the jury convicted him instead of two counts of the lesser misdemeanor offense of battery upon Nicole, in violation of section 242, once on March 16, 2010, and again on March 28, 2010.
Prior to sentencing, defendant waived trial on his prior convictions. After the trial court informed him of his trial rights, he waived them and admitted the prior convictions, and admitted that he had not remained free of prison custody for a period of five years before committing the current offenses.
Defendant brought a Romero motion to dismiss the prior robbery conviction, charged as a strike offense. The trial court denied the motion. It found that although defendant committed the offense as a juvenile, the conviction was less than seven years old, defendant was on parole when he committed the current felony offense, which was serious and violent, and had not conducted his life in a law-abiding manner since the robbery.
See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, and Penal Code section 1385, subdivision (a).
Defendant was sentenced July 28, 2010. At defendant’s request, the trial court considered that defendant had been under the influence of narcotics at the time of the offenses, and that at the time of sentencing, he was taking medication for schizophrenia. The trial court rejected the use of illegal drugs as a mitigating factor, and imposed the high term of four years in prison as to count 5, considering as an aggravating factor his status as a parolee at large. That term was doubled to eight years as a second strike, pursuant to section 1170.12, subdivisions (a) through (d), enhanced by one year under section 667.5, subdivision (b). As to the misdemeanor offenses in counts 1 and 6, the trial court imposed consecutive terms of six months each, to be served in any penal institution. The court granted custody credit of 122 actual days served and 24 good time/work time credits.
The trial court imposed a restitution fine of $200 per year of incarceration, pursuant to section 1202.4, and a parole restitution fine in the same amount, pursuant to section 1202.45, stayed until successful completion of parole. The court imposed a $200 assessment and surcharge pursuant to section 1464 and Government Code section 7600, as well as a court security surcharge of $30 per offense, pursuant to section 1465.8, subdivision (a), and a court facilities assessment of $30 per offense, pursuant to Government Code section 70373. The court ordered defendant to submit to a DNA test.
Defendant filed a timely notice of appeal.
We conclude that defendant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.).