People v. Blake

Full title: THE PEOPLE, Plaintiff and Respondent, v. VIRGIL CARLYLE BLAKE, SR.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

Date published: Nov 15, 2011

A132086 (Cal. Ct. App. Nov. 15, 2011)

Opinion

A132086

11-15-2011

THE PEOPLE, Plaintiff and Respondent, v. VIRGIL CARLYLE BLAKE, SR., Defendant and Appellant.

RUVOLO

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Humboldt County Super. Ct. No. CR1101041)

Virgil Carlyle Blake, Sr. (appellant) appeals from a six-year state prison sentence he received, subject to local custody credits, after pleading guilty to assaulting a police officer with a firearm (Pen. Code, § 245, subd. (d)(1)).¹ Appellant's counsel has filed an opening brief in which he raised no issues and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel declares he has notified appellant that no issues are being raised by counsel on appeal and that an independent review under Wende is instead requested. Counsel also advised appellant of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention, and appellant has not done so.

1 All further undesignated statutory references are to the Penal Code.

Appellant was originally charged with four counts in a criminal complaint filed on March 9, 2011,² by the Humboldt County District Attorney including assault on a police officer with a firearm (§ 245, subd. (d)(1)), resisting an executive officer (§ 69), being a convicted felon in possession of a firearm (§ 12021, subd. (c)(1)), and battery (§ 242). That same day, appellant entered a not guilty plea to the charges.

2 All further undesignated date references are to the year 2011.

The preliminary hearing commenced on March 22. Before that hearing concluded, appellant accepted a negotiated plea by which he pleaded guilty to the assault on a police officer charge, in return for a dismissal of the remaining charges. In pleading guilty, appellant knowingly and voluntarily waived his criminal defendant's rights to trial under the federal Constitution, and acknowledged that he could be sentenced to state prison for up to six years as a consequence of his plea. The case was referred to the probation department for a presentence report, and sentencing was set for May 4.

A presentence report was prepared by the probation department and filed on May 4. The report noted that appellant was statutorily ineligible for probation unless unusual circumstances were present (§ 1203, subd. (e)(2)), and the department found none in this case. Therefore, the recommendation was that appellant be sentenced to a six-year term in state prison consistent with the plea agreement,³ less applicable custody credits, and that several fines and penalties be imposed in accordance with state law.

3 The probation department concluded that appellant qualified for an aggravated term of eight years, but recommended a six-year term consistent with the negotiated disposition.
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At the May 4 sentencing hearing, appellant's counsel asked that appellant be granted formal probation, or, alternatively, that he be sentenced to state prison for the low term. The prosecution argued that the midterm of six years should be imposed in accordance with the plea agreement in light of appellant's 20-year criminal history and his recent convictions for more violent crimes, including the current offense. The court then denied probation, finding an absence of unusual circumstances, and sentenced appellant to a six-year state prison term. Other fines and penalties were imposed. Custody credits under section 4019 were also awarded.

We discern no error in the sentencing or plea disposition. The refusal to grant probation and the sentencing choice made by the trial court were supported by substantial evidence, well within the discretion of the trial court, and were consistent with the negotiated plea to which appellant had agreed. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel. Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.

DISPOSITION

The judgment is affirmed.

RUVOLO, P. J. We concur: REARDON, J. SEPULVEDA, J.