Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. CR0993784.
Needham, J.
Michael J. Taylor appeals from a judgment sentencing him to prison for a six-year aggregate term after he pled guilty to assault with a deadly weapon and admitted a great bodily injury enhancement. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.
Further statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Because appellant entered a guilty plea, the facts of the offense are taken from the preliminary hearing.
A Ukiah Police Department officer found Anthony Rojas lying on some railroad tracks bleeding from his back and midsection. He had been stabbed many times, and wounds in his neck had severed his vocal cords. Appellant, who was 19 years old, had been seen fighting with Rojas, who claimed to have ties to the Norteño street gang. Appellant admitted stabbing Rojas and gave the police the location of the knife he had used, but told at least three different stories about what had happened. An officer who spoke to appellant on the day of the stabbing noticed that he had blood on his clothing and a bite mark on his right shoulder.
Appellant was charged with attempted murder and mayhem with various enhancement allegations (§§ 664/187, 205, 12022, subd. (b)(1), 12022.7, subd. (a)), but was allowed to plead guilty to assault with a deadly weapon with a single enhancement for inflicting great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)). The prosecution did not agree to any particular sentence in exchange for the plea, and appellant was advised he could receive up to seven years in prison as a result of his plea.
The probation report prepared in anticipation of the sentencing hearing described appellant’s “very difficult childhood, ” which included removal from his parents’ care at age three and a number of unsuccessful placements in foster care and group homes. He was declared a ward of the juvenile court in 2007 after committing an assault with a deadly weapon and had committed other violent acts. A juvenile probation officer had described him as “ ‘volatile, unpredictable, dangerous, and emotionally unstable.’ ”
Because of appellant’s youth and possible mental health issues, the probation officer recommended a referral to the Department of Corrections and Rehabilitation for a diagnostic evaluation under section 1203.03. The probation officer noted that appellant had been accepted into Teen Challenge, a faith-based treatment program that focuses on alcohol and substance abuse, anger management, and impulse control.
The court referred appellant to San Quentin State Prison for a diagnostic evaluation. The clinical psychologist who evaluated appellant at San Quentin noted that he had a history of drug and alcohol use and suffered from a mood disorder and a personality disorder with antisocial traits. The evaluator concluded, “Efforts at rehabilitation and treatment thus far do not appear to have been successful and [appellant] remains a significant danger to the community if not properly treated given the seriousness of his crime and his unmanaged anger.” The Associate Warden of San Quentin State Prison recommended a prison sentence rather than a grant of probation based primarily on the serious nature of the offense.
The probation officer prepared a supplemental report after reading the diagnostic evaluation, in which he concluded: “[Appellant] has been through the legal system most of his life, .... However, all of his placements have been unsuccessful except for one brief period at Northern California Regional Facility, which is a locked-down facility. While in a structured, locked facility, [appellant] functions fairly well. It is for this reason we believe the unsecured facility at Teen Challenge would not be adequate to protect the safety of the community. [Appellant’s] behavior is too unpredictable to take the chance of adding to the list of his victims.”
At the sentencing hearing, the court noted that appellant was presumptively ineligible for probation due to his use of a deadly weapon and his infliction of great bodily injury. (§ 1203, subd. (e)(3).) Among other things, it considered appellant’s youthfulness, the seriousness of the offense, appellant’s prior juvenile adjudications involving crimes of violence, his poor performance on prior grants of probation, and the likelihood that he would pose a danger to others if not imprisoned. The court denied probation and imposed a prison sentence of six years: the three-year middle term on the assault count and three years for the great bodily injury enhancement.
Appellant filed a notice of appeal stating, “This appeal is based on the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Ct., rule 8.304(b).)” He did not obtain a certificate of probable cause. (§ 1237.5.)
II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende/Anders brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. We have independently reviewed the entire record for potential error and find none.
Because appellant has not sought or obtained a certificate of probable cause, we do not consider issues regarding the validity of his plea. (§ 1237.5.) As to matters occurring after the plea was entered, the record does not reveal error. Although appellant was presumptively ineligible for probation due to his admission of a great bodily injury enhancement, the court ordered a diagnostic study to determine his suitability for probation. It did not abuse its discretion, i.e., act arbitrarily or capriciously, when it concluded that appellant presented too great a danger to be placed on probation in an unlocked facility. (See, generally, People v. Weaver (2007) 149 Cal.App.4th 1301, 1311-1312; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530.) Appellant received appropriate presentence conduct credits under section 2933.1.
We are satisfied that appellant’s appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, Acting P.J., Bruiniers, J.