Opinion
A132668
11-15-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY NIEBLING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR152217)
Defendant Jeffrey Niebling timely appealed from a judgment entered on his plea. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We find no arguable issues and affirm.
On July 19, 2010, defendant, who was then 49 years old, was charged by amended information with two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664— counts 1 & 2), one count of poisoning (§ 347, subd. (a)—count 3), and two counts of inflicting injury upon an elder (§ 368, subd. (b)(1)—counts 4 & 5), after he placed a potentially lethal amount of benzodiazepines in the fruit smoothies of his elderly parents, with whom he lived at the time. Both victims ingested smoothies made with the drug, and had to be hospitalized because of the effect it had on them.
All statutory references are to the Penal Code.
Defendant pleaded no contest pursuant to a plea agreement on January 28, 2011, to two counts of attempted murder (counts 1 & 2). Per the agreement, allegations that defendant committed the attempts willfully, deliberately, and with premeditation (§ 189) were stricken. The remaining counts were dismissed, pursuant to the plea agreement. Defendant acknowledged and waived various constitutional rights, but not his right to appeal the judgment. He later waived his right to be sentenced by the same judge who took his plea. (People v. Arbuckle (1978) 22 Cal.3d 749.)
According to defendant's sentencing statement, he was diagnosed in 2009 with toxoplasmosis and HIV, which made him feel sick and act irrationally at times. The defense presented a report from a psychiatrist who diagnosed defendant with a mental disorder, not otherwise specified, due to AIDS and cerebral toxoplasmosis.
The trial court denied defendant's request for probation after concluding that defendant was a danger to others, and sentenced him to the lower term of five years on count one, and one third the midterm, 28 months, on count two, to be served consecutively, for a total sentence of seven years, four months. The court imposed consecutive sentences because defendant's crimes involved "separate acts of violence" against both defendant's mother and his father.
No error appears in the entry of defendant's plea, or in the sentencing proceedings. The record demonstrates that defendant was represented by counsel throughout the proceedings. The record also reveals that defendant was advised of the rights he waived and the consequences of his no contest plea. The court found the plea to be free and voluntary, that defendant had made a knowing and intelligent waiver of his constitutional rights, and that there was a factual basis for the plea. The trial court did not abuse its discretion in imposing consecutive terms. (§ 669; People v. Leon (2010) 181 Cal.App.4th 452, 468 [trial court has discretion to impose consecutive sentences where single act results in crimes against multiple victims].)
There are no meritorious issues to be argued on appeal. The judgment is affirmed.
Sepulveda, J. We concur: Reardon, Acting P.J. Rivera, J.