Opinion
F050144
11-30-2006
THE PEOPLE, Plaintiff and Respondent, v. ALBERT JAMES JOSEPH, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Harris, J., and Kane, J.
INTRODUCTION
On July 12, 2005, appellant, Albert James Joseph, was charged in a felony complaint with assault likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1), count one) and cutting a telephone line (Pen. Code, § 591, count two). On July 21, 2005, the complaint was amended to add count three, felony false imprisonment (§ 236). Joseph agreed to admit counts one and three. Count one would be treated as a misdemeanor and appellants sentence on that count would be served consecutive to the 16-month low term for false imprisonment.
Unless otherwise noted, all statutory references are to the Penal Code.
New trial counsel was appointed for Joseph. On November 1, 2005, the trial court granted Josephs motion to withdraw his plea. On November 15, 2005, the prosecution filed a new complaint alleging that Joseph committed an assault likely to cause great bodily injury and that he cut a phone line. The complaint included an allegation that Joseph inflicted corporal injury on a spouse (§ 273.5). After being advised of the consequences of a plea and his constitutional rights pursuant to Boykin/Tahl, and waiving them, Joseph admitted the corporal injury to a spouse allegation. The parties stipulated to a factual basis for the plea. The other counts were dismissed.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The trial court sentenced Joseph to felony probation for three years upon various terms and conditions. On December 12, 2006, a petition was filed to revoke Josephs probation based on a new criminal action that had been filed against him. On January 26, 2006, Joseph waived his right to a hearing on the probation revocation petition and admitted the allegation. The parties agreed Joseph would receive a sentence of 16 months in prison.
Upon learning that a violation of section 273.5 is punishable by a range of two, three, or four years in prison, the trial court permitted Joseph to withdraw his admission that he was in violation of probation. On February 9, 2006, the court advised Joseph that he had the right to a formal hearing where evidence would be presented concerning his violation of probation. Joseph would have the right to present evidence, call witnesses, and cross-examine witnesses. Joseph would have the right to be present throughout the hearing, to testify if he wished, to have others testify for him, and to subpoena witnesses. Joseph could also remain silent and no one could force him to say anything.
Joseph waived his right to a formal hearing and again admitted he was in violation of the terms of his probation. The parties stipulated there was a factual basis for the allegations in the petition. No promise was made concerning the length of Josephs potential prison term. The court sentenced Joseph to the midterm of three years in prison, granted applicable custody credits, and imposed a restitution fine.
The petition alleged that Joseph violated the conditions of his probation by seeing the victim of his original offense on December 8, 2005. Joseph was intoxicated. When the victim stated she was going to call the police, Joseph ripped the phone cord from the wall. He was charged in a new criminal action with severing a phone line (§ 591), resisting arrest (§ 148, subd. (a)(1)), and being intoxicated in a public place (§ 647, subd. (f)).
Joseph filed a timely appeal on April 10, 2006, from the trial courts order revoking his probation and sentencing him to prison. Joseph failed to obtain a certificate of probable cause.
Josephs appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Joseph was advised he could file his own brief with this court. On August 10, 2006, we invited Joseph to submit a letter stating any grounds on appeal he would want this court to consider. To date, he has not done so.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.