Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR561664
Lambden, J.
Jorge Alberto Dominguez appeals from the final judgment entered after his guilty plea. His counsel raises no issues and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441-442.
BACKGROUND
The information charged appellant with six counts of felony violations. These included infliction of corporal injury on Jane Doe (Pen. Code, § 273.5, subd. (a)) in count one; assault with a deadly weapon (knife) (§ 245, subd. (a)(1)) in count two; assault with a deadly weapon (belt) (§ 245, subd. (a)(1)) in count three; assault by means of force likely to produce great bodily injury to Doe (§ 245, subd. (a)(1)) in count four; violation of personal liberty of Doe (§ 236) in count five; and unlawful threat to commit a crime which would result in death and great bodily injury to Doe (§ 422) in count six.
All further statutory references cite to the Penal Code unless otherwise indicated.
The information contained additional alleged enhancements in counts one and four. Appellant was charged with enhancements of personal infliction of bodily injury upon Doe under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e). These counts are alleged to be serious felonies and violent felonies within the meaning of sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8).
At the preliminary hearing, the court heard from the following witnesses: the victim, an investigator with the Sonoma County District Attorney’s office, and a Cloverdale police officer who searched the victim’s residence and found the knife appellant used to threaten her.
Appellant was romantically involved with Jane Doe, the victim, and had been living with her for several months. On May 9, 2009, while appellant was drunk and angry about a conversation with the victim, he violently beat her for approximately two and a half hours. He also choked her, bit her nose, waived a sharp knife at her, and whipped her face and body repeatedly with a belt. The victim suffered severe head trauma, facial contusions, extremity and chest wall contusions, dislocation and fracture of a finger, and a nasal fracture. She testified that she was “very scared” that appellant would carry out his threats to kill her and her family.
At his arraignment, appellant entered a plea of not guilty to all counts, and denied any prior convictions, enhancements, and special allegations. Appellant later changed his not guilty plea and entered a new plea of no contest to counts one through six in case No. SCR-561664. Appellant admitted the enhancements alleging the infliction of great bodily injury in the context of domestic violence charges (12022.7, subdivision (e)). Following the court’s advisements about appellant’s constitutional rights, appellant indicated he understood another consequence of his change of plea: because he was already on probation at the time of the instant violations, and his change of plea resulted in a new conviction violating the grant of that prior probation, the case would be set for sentencing without the possibility of further probation.
At appellant’s sentencing hearing, the following sentence was imposed: as to count one (§ 273.5, subd. (a)), the aggravated term of nine years; as to counts two and three (§ 245, subd. (a)(1)), one year consecutive to each other and count one; as to counts four (§ 245, subd. (a)(1)) and five (§ 236), sentence was stayed pursuant to section 654; and as to count six (§ 422), eight months consecutive to counts one, two, and three. The court also imposed an eight-month sentence, consecutive to counts one, two, three, and six for violation of probation. Thus, the sentence was for a total term of 12 years and four months.
Subsequently, the court denied appellant’s request that new counsel represent him pursuant to People v. Marsden (1970) 2 Cal.3d 118. Counsel for appellant then submitted a request for certificate of probable cause, specifically appealing the sentence and challenging the validity of the plea. This request was denied.
Counsel for appellant filed a Wende brief, raising no arguable issues. Appellant was apprised of his right to file a supplemental brief. Appellant has not filed a brief.
DISCUSSION
To set aside his conviction appellant must show that he waived his rights and entered his no contest plea to the charged offenses without understanding the consequences of his act. His amended request for a certificate of probable cause states: “that he believed, at the time he changed his plea, that he was pleading for probation and a program rather than the possibility of state prison. [He] asserts that he was not advised that he could be sent to state prison and he did not understand that his maximum exposure was 13 years and 4 months in state prison.”
A change of plea is valid “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1175.) To determine whether the new plea was voluntarily entered, we objectively evaluate the totality of the circumstances. (People v. Guzman (1993) 14 Cal.App.4th 1420, 1422.) The record indicates that appellant’s counsel and the trial court adequately and thoroughly advised appellant of the direct consequences of the plea. The court inquired whether appellant had reviewed the change of plea form with his attorney and asked if appellant asked his attorney questions about the consequences of the plea. To both of these inquiries, appellant replied in the affirmative. The court also asked appellant if he understood that his plea was an open plea, and that there were no guarantees as to what the sentence would be. Again, appellant answered in the affirmative. The court also asked if appellant was entering this plea “freely and voluntarily, ” to which appellant responded, “Yes.” This response is consistent with the written plea form initialed and signed by appellant, which states that appellant has read and understood each statement initialed. We cannot discern ignorance on the part of appellant from these facts, and find the change of plea to be valid.
We also find no error in the denial of the Marsden motion. The record does not establish that appointed counsel was providing inadequate representation or that ineffective representation would likely result in the future due to irreconcilable conflict between counsel and appellant. (People v. Bamett (1998) 17 Cal.4th 1044, 1085.) Further, we find that the record does not indicate abuse of discretion by the trial court. Denial “ ‘is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel.’ ” (Ibid.) Nowhere in the record does the defendant establish that failure to substitute the appointed attorney would substantially impair his right to assistance of counsel. We see no error in the denial of appellant’s Marsden motion.
We also conclude denial of the motion to suppress the victim’s medical records to be harmless even if erroneous. The defense argued there was no foundation for the medical records because the affidavit submitted with them did not indicate how the records were put together. Absent those records, the defense argued there was a failure of evidence, and that there was insufficient evidence to support the great bodily injury enhancement. We agree with the trial court’s characterization of the photographs, which were also admitted, as describing injuries consistent with the medical records. There was sufficient evidence of injury to support the great bodily injury enhancement, even without the medical records.
DISPOSITION
Our independent review of the record reveals no arguable issues that require further briefing. Accordingly, the judgment is affirmed.
We concur: Kline, P.J., Richman, J.