Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-46398
RIVERA, J.
Defendant Myriss Jon Winston appeals a judgment entered upon his plea of no contest to attempted second degree murder. (Pen. Code, §§ 187 & 664.) His counsel has filed an opening brief raising no issues and asking 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.) Defendant has been apprised of his right to file a supplemental brief, but he has not done so.
All undesignated statutory references are to the Penal Code.
By a fourth amended information, defendant was charged in count I with discharging a firearm at an occupied motor vehicle (§ 246); in count II with drawing and exhibiting a firearm in a threatening manner at a person in a motor vehicle (§ 417.3); in count III with willfully and maliciously discharging a firearm from a motor vehicle (§ 12034, subd. (d)); in count IV with being a felon in possession of a firearm (§ 12021, subd. (a)(1)); in count V with discharging a firearm at a vehicle and its occupant maliciously and with intent to do great bodily injury (Veh. Code, § 23110, subd. (b)); in count VI with attempted murder (§§ 187, subd. (a) & 664); in count VII with assault with a firearm (§ 245, subd. (a)(2)); in count VIII with possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)); in count IX with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and in count X with attempted murder (§§ 187, subd. (a) & 664). The information also alleged numerous enhancements and a prior strike conviction.
In May 2005, Drew Hammoudeh and her friend Nicole Brazil were driving out of a parking lot. Hammoudeh, who was driving, saw a Camry go past her, and noticed that it was following her. The Camry pulled up behind her, and she saw the driver “flipping [her] off and yelling and putting her arms up” and heard the people in the car screaming and swearing, saying things like “ ‘fuck you,’ ” and “ ‘you’re a bitch,’ ” and “ ‘what the fuck.’ ” The Camry, which contained a female driver and two male passengers, followed Hammoudeh’s vehicle, and its occupants continued to scream at Hammoudeh and Brazil. Someone in the Camry threw a container of beer at Hammoudeh’s car. At one point, when the Camry was ahead of Hammoudeh’s car, she made a note of its license plate number. The Camry continued to follow Hammoudeh’s car as she approached a freeway entrance, got onto the freeway, then got off the freeway at an exit and drove on surface streets. As she drove, she suddenly began to black out and could not speak. She drove her car into a ditch and got out, covered in blood. An expended bullet was later found in Hammoudeh’s car, with blood and hair on it.
This summary of the facts is taken from the testimony at the preliminary hearing and the presentence report.
Hammoudeh had suffered a gunshot wound to the side of her head. She underwent surgery and spent six days in the hospital, then three months off work getting speech therapy and treatment for memory loss. She continued to be troubled by short-term memory problems, confused thought processes, and speech problems. At the time of the preliminary hearing, Hammoudeh still had a visible scar from the head injury.
Defendant was later arrested. In the pocket of his jacket, which was in the trunk of the car he had been in when he was apprehended, the officer found a .38 revolver with one expended round. The gun smelled as if had recently been fired. Methamphetamines and cocaine base were also found in the car, and another occupant of the car said defendant had given them to her before being taken from the car by deputies.
After being advised of his rights, defendant spoke with Detective Dave Pedersen. He told Pedersen he had been in the passenger seat of a car driven by his girlfriend Karli Scarioni, and that his brother had been in the back seat. According to defendant, Scarioni yelled the word “bitch” toward another driver, and they started following her. Someone in their car threw a 40-ounce beer bottle at Hammoudeh’s car. Defendant pointed a gun at Hammoudeh’s car, but discharged it accidentally.
In a negotiated disposition, defendant pled no contest to count X, attempted second degree murder, and the court found him guilty. (§§ 187, subd. (a) & 664.) He admitted he had personally inflicted great bodily injury on Hammoudeh (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (a)) and that he had personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 1192.7, subd. (c)(8) & 667.5, subd. (c)(8)). He also admitted a prior strike conviction. (§ 1170.12.)
Before the court took his plea, defendant waived his appellate rights, and he waived his right to have the jury decide the facts to justify the aggravated term. He signed a form waiving his constitutional rights to a jury trial, to confront and call witnesses and present evidence, and the right against self-incrimination. He agreed that the maximum punishment would be a determinate term of 31 years in prison, followed by parole for five to seven years. He also agreed to a Blakely waiver (Blakely v. Washington (2004) 542 U.S. 296), giving up the right to trial by jury on the facts in aggravation that might be used to increase his sentence to the upper or maximum term.
Pursuant to the negotiated disposition, the trial court sentenced defendant to 31 years in prison, based on the aggravated term of 18 years (§§ 664, subd. (a) & 1170.12), 3 years for the great bodily injury enhancement (§ 12022.7, subd. (a)), and 10 years for the firearm enhancement (§ 12022.5, subd. (a)).
Defendant was represented by counsel throughout the proceedings. He was advised of his rights before making his plea. The sentence was calculated correctly. There are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.