Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS042891A.
ELIA, J.
Michael Carlos Garcia appeals from the judgment sentencing him to three years eight months in state prison following his admission of a probation violation. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436. On August 27, 2007, we advised appellant that he had 30 days within which to submit personally any argument that he wanted us to consider. To date, we have received no response from appellant. We have examined the entire record and are satisfied that appellant's counsel has complied fully with his responsibilities. No arguable issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 119; People v. Wende, supra, 25 Cal.3d at p. 441.) We reach that conclusion from these facts:
In March 2005, appellant was charged with one count of felony assault for his conduct during an altercation involving defendant, a female companion, defendant's former girlfriend, and the former girlfriend's mother. (Pen. Code, § 245, subd. (a)(1).) Other charges from the events of that day included misdemeanor brandishing, vandalism, and battery. (Pen. Code, §§ 417, subd. (a)(1), 594, subd. (a), 242.) Appellant was also charged with two felony counts of making criminal threats to the former girlfriend and her mother in telephone calls the next day. (Pen. Code, § 422.)
In May 2005, pursuant to a negotiated disposition, appellant pleaded no contest to the assault charge, which was reduced to a misdemeanor, and one of the criminal threats charges, with the understanding that the remaining charges would be dismissed and that he would be granted probation. In June 2005, appellant was placed on probation with various terms and conditions.
In August 2005, appellant was convicted of felony participation in a criminal street gang in violation of Penal Code section 186.22 and placed on probation.
In November 2006, appellant was arrested for making criminal threats and resisting arrest for accosting a pedestrian and running from the police when the pedestrian asked for assistance from a passing police officer. (Pen. Code, §§ 422, 148.) According to the police report in this new matter, appellant also admitted using heroin and drinking beer in violation of the conditions of his probation.
The probation department filed a petition to revoke appellant's probation. Following the proper advisement, appellant admitted the probation violation based on this new case. Appellant was told that the maximum sentence that could be imposed was a total of three years eight months for the criminal threats case and the Penal Code section 186.22 case. Appellant also indicated that he understood that if the court sent him to state prison for the probation violation, his new case would be dismissed.
In January 2007, the trial court terminated appellant's probation. The trial court sentenced appellant to a state prison term of three years and eight months, representing and upper term of three years for the Penal Code section 186.22 case and an eight-month consecutive term for the matter on appeal here, the criminal threats case. This term was imposed a few days before the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. Defense counsel moved the trial court to recall the sentence pursuant to Penal Code section 1170, subdivision (d) and that motion was denied. The notice of appeal in this case states that appellant was appealing the imposition of the upper term. That term, however, was imposed in the Penal Code section 186.22 case which was not included in the notice of appeal here.
DISPOSITION
The judgment is affirmed.
RUSHING, P. J., PREMO, J.