Opinion
H033144.
3-2-2009
THE PEOPLE, Plaintiff and Respondent, v. PEDRO VILLASENOR, Defendant and Appellant.
Not to be Published in Official Reports
Appellant Pedro Villasenor pleaded no contest to one count of assault by means of force likely to produce great bodily injury and one count of inflicting corporeal injury on a cohabitant and admitted great bodily injury enhancements as to both counts. (Pen. Code, §§ 245, subd. (a)(1), 273.5, subd. (a), 12022.7, subd. (e), 1203, subd. (e)(3).) The trial court sentenced him to four years in state prison. Villasenor appeals from the judgment. We appointed counsel to represent appellant. After examining the record, counsel filed a request for an independent review of the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel has not referred this court to any possible, but not arguable, issues. (Anders v. California (1967) 386 U.S. 738 .) On December 16, 2008, we advised appellant that he had 30 days within which to submit personally any arguments that he wanted us to consider. To date, we have received no response from appellant. We affirm.
Background
On September 7, 2007, appellant and Patricia Hunt were living in a homeless encampment near the railroad tracks by Monterey Road in San Jose. Hunt had purchased beer and appellant wanted some. At the preliminary examination held November 19, 2007, Hunt testified, "At first I did not want to give him any because he was very intoxicated already. And then finally I did toss him a beer. He wanted another one. I gave him another beer. He became verbally abusive and I walked away." When appellant followed Hunt, she picked up two railroad spikes to "keep him from coming near me . . . for the beer." Hunt testified that she swung the spikes at appellant who "came running at me. He grabbed me by the throat, knocked me and the chair over and began throttling me to the ground." An expert in "intensive care treatment of strangulation patients" testified that the injuries Hunt suffered were the worst case of strangulation she had ever seen. Hunt was in the intensive care unit for almost a week and in the hospital for 26 days.
On October 3, 2007, criminal proceedings were suspended for proceedings under Penal Code section 1368. On October 31, 2007, the court found appellant competent. An information filed December 14, 2007, charged appellant with one count of assault by means of force likely to produce great bodily injury and one count of inflicting corporeal injury on a cohabitant with great bodily injury enhancements as to both counts. (Pen. Code, §§ 245, subd. (a)(1), 273.5, subd. (a), 12022.7, subd. (e), 1203, subd. (e)(3).) On January 28, 2008, appellants case was set for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. On January 29, 2008 the court held the hearing and denied the Marsden motion. The next day, a jury was selected.
On January 31, 2008, appellant changed his plea. He pleaded no contest to one count of assault by means of force likely to produce great bodily injury and one count of inflicting corporeal injury on a cohabitant and admitted great bodily injury enhancements as to both counts. Hunt was present and made a statement to the court. When asked for her "input" on sentencing, she said, "I would like him to tell me hes sorry and I would like him to go home to his children." Appellant apologized to Hunt and asked her forgiveness. She said, "I already have forgiven you a long time ago."
Before sentencing, the prosecutor submitted a statement in aggravation asking the court to sentence appellant to five years in state prison. The probation department report observed that appellant was 43 years old with no prior criminal record and recommended a three year state prison sentence. Appellant submitted a statement that included his social and employment history and noted that he had lettered in track and field, taken college preparatory classes in high school, including calculus, and had worked at Google until he was injured and dismissed.
The trial court denied probation and sentenced appellant to a state prison term of four years. This represented the upper term for the violation of Penal Code section 245, subdivision (a) with the punishment as to the great bodily injury allegation stricken. Imposition of punishment on the second count and enhancement was stayed pursuant to Penal Code section 654. The court ordered appellant to pay an $800 restitution fine, a corresponding parole revocation fine, and a $40 court security fee and awarded custody credits. (Pen. Code, §§ 1202.4, subd. (b), 1202.45.)
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, has disclosed no reasonably arguable appellate issue. Competent counsel has represented appellant in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR:
RUSHING, P. J.
PREMO, J.