Opinion
C086733
12-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DAVID LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17CR003003, NCR98041)
Appointed counsel for defendant Joseph David Lewis asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
We provide the following brief description of the facts and procedural history of defendant's two cases. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
FACTS AND PROCEEDINGS
This matter involves two separate filings. In both cases, the parties stipulated to a factual basis in the police report. As to case NCR98041, the facts are taken from the probation report's summary of the police report. As to case 17CR003003, the facts are taken from the police report.
Case NCR98041
Law enforcement officers went to the home of defendant and the victim to look into a domestic disturbance report. The victim said that defendant had kneed her in the left shin. She in turn slapped defendant across the face several times. He then punched her in the arm about three times and choked her for about five seconds. When she broke free, she went to their bedroom. Defendant followed and refused to let her leave the room. He then threw her on the bed and forcefully put both hands around her neck for about five seconds. He finally stopped when their roommate came to the door and said the police had been called.
In exchange for a stipulated probation term, defendant pleaded guilty to corporal injury to a spouse (Pen. Code, § 273.5). The trial court ordered five years probation along with community service and a 120-day jail term with credit for time served. Defendant also admitted to violating his existing misdemeanor probation, and the court reinstated that probation.
Eight months later a probation violation petition was filed alleging defendant had tested positive for amphetamines, refused to provide a urine sample, and failed to enroll in a required drug and alcohol program.
Defendant admitted to a probation violation. The trial court reinstated probation on the same terms and ordered defendant to serve 120 days in jail.
Case 17CR003003
Eight months later, defendant sent a new victim numerous electronic messages threatening to rape her: "I'll rape you if you don't fuck me," "we fucking right or do I have to rape you," "So I am rapping you next time I see you," "let me fuck you or u going to be raped," "when I see you when I get out I am rapping you," "if you don't text bk I am going to rape you and there's nothing you can do about it," "if you don't talk to me I'll have some of my friends hold you down why I rape you."
The victim told police she feared defendant would rape her because he had tried to rape her a year before. At defendant's trailer, defendant had put his hand on the victim's thigh, and she pushed it away, telling him to keep his hands to himself. Defendant said he would fuck her one way or another and climbed on top of her, pulled down his shorts and exposed his penis. When the victim's brother knocked on the door, the victim screamed for help. The brother kicked in the door and pulled defendant off the victim.
In exchange for the dismissal of the remaining counts, defendant pleaded guilty to attempted rape by threat (Pen. Code, §§ 664/261, subd. (a)(6)). He also admitted violating probation in case NCR98041.
The trial court imposed an aggregate two-year six-month term. In case 17CR003003, it ultimately imposed a low term of one-year six months for attempted rape by threat. In case NCR98041, it imposed a consecutive one-year term (one-third the middle) for corporal injury to a spouse. The court awarded 357 days of custody credits (179 actual, 178 conduct) and imposed various fines and fees.
DISCUSSION
Counsel filed an opening brief setting forth the facts of the cases and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: ROBIE, J. MURRAY, J.