Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS101935A
ELIA, J.On August 25, 2010, defendant Jacob Rede pleaded no contest to one felony count of assault by force likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(1)) and one misdemeanor count of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (b)). In exchange for his no contest pleas, defendant was promised felony probation and the dismissal of several other charges.
Thereafter, pursuant to the negotiated disposition, the court placed defendant on probation for three years on the assault charge on condition that he serve one day in county jail, with credit for time served. On the driving under the influence charge, the court again placed defendant on probation on condition that he serve an 80 day county jail sentence, with credit for time served. The court imposed various fines and fees, some of which were not conditions of probation and were made subject to his ability to pay.
Defendant filed a timely notice of appeal. We appointed counsel to represent defendant in this court. Pursuant to People v. Wende (1979) 25 Cal.3d 436, counsel filed an opening brief that stated the facts, but raised no specific issues. On January 6, 2011, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) In addition, we have included information about aspects of the trial court proceedings that might become relevant in future proceedings. (Id. at p. 112.)
Since there was no preliminary hearing in this case, we take the facts from the probation officer's report.
On August 14, 2010, defendant drove into the Shell gasoline station in Salinas where Jason Greenwalt was employed. Defendant asked Greenwalt for the restroom key. Greenwalt told him that the key was only for customers. Defendant insisted on getting the key. Defendant told Greenwalt that he would purchase gasoline after using the restroom so Greenwalt gave him the key. A few minutes later, after returning from the restroom, defendant got back into his car without returning the restroom key or purchasing gasoline. Greenwalt confronted defendant and reminded him of his promise. Defendant cursed at Greenwalt and threatened to slap him if he did not back away. Defendant got a screwdriver from his car and brandished it at Greenwalt; defendant then returned to his car. While Greenwalt was bending down at the rear of defendant's car to get the license plate number, defendant reversed the car into Greenwalt throwing him back several feet and causing an injury to his shoulder.
Subsequently, the police stopped a vehicle matching the description of the vehicle involved in this incident, which had been given to them by Greenwalt and other witnesses. Both defendant and a female passenger in the car denied ever stopping at a gasoline station. As defendant appeared to the officers to be drunk, they administered field sobriety tests, which defendant failed. A preliminary screening test indicated that defendant had a blood alcohol level of.175. Subsequent breath tests showed a blood alcohol level of.10 and.11. Greenwalt identified defendant as the man who had confronted and assaulted him.
Proceedings Below
The Monterey County District Attorney filed a complaint in which defendant was charged with one felony count of assault with a deadly weapon or by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count one), one count of hit and run causing injury (Veh. Code, § 20001, subd. (a), count two), one count of driving under the influence of alcohol or drugs causing injury (Veh. Code, § 23153, subd. (a), count three), one count of driving with a blood alcohol level of.08 percent or more causing injury (Veh. Code, § 23153, subd. (b), count four) and one count of exhibiting a deadly weapon other than a firearm (Pen. Code, § 417, subd. (a)(1), count five).
On August 1, 2010, defendant entered pleas of not guilty to all charges. Thereafter, defendant changed his pleas and signed a form entitled "WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST."
At the change of plea hearing, defense counsel outlined the plea agreement. Defendant would plead no contest to count one (assault with force likely to produce great bodily injury) on the understanding that it was a non-strike offense, he would receive felony probation, and he would not be allowed to request that the conviction be reduced to a misdemeanor "ever." In addition, defendant would enter a plea of no contest to an additional count of driving with a blood alcohol level of.08 percent (Veh. Code, § 23152, subd. (b)).
Before taking defendant's pleas, the court asked defendant if he had understood, signed and initialed the waiver of rights form. Defendant confirmed that he had. The court advised defendant of his trial rights, specifically, of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122. Defendant said that he understood. Further, the court advised defendant that he had a right to testify as well as to subpoena witnesses. Defendant stated that he understood. The court advised defendant of the possible immigration consequences of his pleas; and that there were other consequences of his plea, including that he would have to pay a restitution fund fine of up to $10,000, as well as some fees.
Defense counsel outlined the factual basis for the pleas and the court found that there was a factual basis for the pleas. Defendant entered his no contest pleas to count one and the added count—count six. The court found that defendant understood the possible penalties and consequences of his pleas and knowingly, intelligently and voluntarily waived his rights. The court incorporated the written waiver form into the record.
As noted, thereafter, the court sentenced defendant to probation per the terms of the negotiated disposition. The court imposed various terms and conditions of probation, one of which was imposed over defense counsel's objection. Specifically, the court imposed a gang condition requiring defendant to not associate with any individuals that he knew or reasonably should know to be gang members, drug users, or who were on probation or parole.
Pursuant to our obligation as set forth in People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record. We conclude that there are no arguable issues on appeal for which we must seek further briefing. Therefore, we will affirm the judgment.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, Acting P. J., LUCAS, J.
Judge of the Superior Court of Santa Clara County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.