Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. SC151673A
Margulies, J.
Craig Randall Hill appeals from a judgment following his plea of guilty and imposition of sentence. His counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d. 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that he can file a supplemental brief with the court. No supplemental brief has been received. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Since the present appeal is taken from guilty pleas, we need only concisely recite the facts pertinent to the underlying conviction as necessary to our limited review on appeal. The facts are taken from the probation report.
An amended complaint was filed on March 22, 2007, charging defendant with various offenses related to stalking, threatening, and assaulting the victim and assaulting the victim’s son.
The victim had known defendant for seven years, and since January 2007, she had been receiving calls from him threatening to injure and kill her and her children. On the night of the incident, defendant entered the victim’s bedroom in which the victim and her son were sleeping. He began yelling at the victim while standing over her bed. When the victim’s son tried to reach for the phone, defendant took it from him and choked him for several seconds. After forcing the victim’s son to leave the room, defendant choked the victim.
The victim’s son was sleeping in the bedroom because of the threats she had received from defendant.
Pursuant to a negotiated disposition, defendant entered guilty pleas to one count of residential burglary (Pen. Code, § 459), one count of corporal injury on a spouse/cohabitant (§ 273.5, subd. (a)), one count of stalking (§ 646.9, subd. (a)), and one count of battery (§ 242). Defendant admitted one of the prior conviction allegations. Defendant also entered a waiver of his right to a jury trial on aggravating factors under Blakely v. Washington (2004) 542 U.S. 296.
All references are to the Penal Code unless otherwise specified.
The court sentenced defendant to a total of seven years eight months in state prison. The court imposed the upper term of six years for the burglary, plus a consecutive eight months (one-third the midterm) for stalking. In imposing the upper term, the court found that defendant had a “very substantial bad history, going back 20 years, of criminal offenses.” The court stayed sentence for the offense of corporal injury on a cohabitant under section 654 and imposed an additional year for the prison prior (§ 667.5). As to the misdemeanor offense of battery, the court sentenced defendant to a consecutive six months in county jail. After applying the majority of defendant’s presentence credits of 242 days to cancel out the county jail sentence, the court awarded defendant the balance of 62 days against his prison term. The court imposed a $600 restitution fine (§ 1202.4, subd. (b)), a corresponding suspended parole revocation restitution fine (§ 1202.45) and a $60 court security fee (§ 1465.8).
DISCUSSION
We have reviewed the record on appeal. By entering pleas of guilty, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his pleas; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress evidence or issues relating to matters arising after the pleas were entered. (§ 1237.5; Cal. Rules of Court, rule 8.304, subd. (b)(4)(B).) Defendant did not obtain a certificate of probable cause.
Defendant was represented throughout the proceedings by counsel. Defendant entered his pleas after being advised of his rights and the consequences of his pleas.
We find no sentencing errors, including the imposition of the upper term, which would require reversal of the judgment. In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court held that imposition of an upper term sentence does not violate a defendant’s right to a jury trial where “at least one aggravating circumstance was established by means that satisfy Sixth Amendment requirements and thus made him eligible for the upper term.” (Id. at pp. 805–806.) The court further held that the Sixth Amendment does not include the right to a jury determination on the fact that prior convictions occurred. (Id. at p. 819, fn. 8.) The imposition of the upper term sentence was affirmed where a sentencing brief and probation report listed, as an aggravating circumstance, that defendant’s prior convictions were “ ‘numerous or of increasing seriousness.’ ” (Id. at p. 818, fn. 7.) As in Black, defendant here is eligible for the upper term by virtue of his numerous prior convictions summarized in the probation report. The court’s conclusion that defendant had a substantial criminal history going back 20 years is supported by the probation report.
The trial court is presumed to have read and considered the probation report. (People v. Montgomery (1955) 135 Cal.App.2d 507, 514–515.)
We find no arguable issues that require further briefing and accordingly, affirm the judgment.
We concur: Marchiano, P.J., Stein, J.