Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FCH06542, Raymond P. Van Stockum, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster, J.
Defendant appeals from a conviction for felony assault. (Pen. Code, § 245, subd. (a)(1).)
All further statutory references will be to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
After a preliminary hearing was held, defendant was charged in an amended information with assault while confined in a state prison. (§ 4501.) It was further alleged that defendant had served three prior prison terms. (§ 667.5, subd. (b).)
On April 8, 2005, the prosecution orally amended the information to charge a second count of violation of section 245, subdivision (a)(1), assault with a deadly weapon. Defendant then entered into a negotiated plea agreement in which he agreed to plead guilty to the new second count. The parties agreed to a sentence that included a two-year prison term with execution of sentence suspended for a period of three years. The parties further agreed that the remaining charges would be dismissed and that the offense he was pleading to would constitute a “strike” prior. The parties agreed that defendant would then serve no additional time in custody.
Defendant entered his plea in front of Judge Gerald Brown, and the case was referred to the probation department for a report. Defendant was ordered to return for sentencing. He failed to appear for sentencing and a warrant issued for his arrest.
Defendant was later charged with murder (§ 187), and sentencing in the present case was trailed pending resolution of the murder case.
In August 2007, defendant was convicted of murder and sentenced to 55 years to life on that case. Defendant was granted the right of self-representation in the present case. Judge Brown appointed an investigator to assist defendant. Another investigator was appointed after defendant expressed dissatisfaction with the first one. Judge Haight vacated the appointment of an investigator because the purpose for which he was appointed was more appropriate to gathering information for a petition for writ of habeas corpus, and the investigator was not necessary for the motion to withdraw his plea since the scope of inquiry for such a motion is so narrow and confined to the record of the plea itself. Eventually, defendant filed a motion to withdraw his plea on May 22, 2008. Judge Haight denied the motion on June 13, 2008.
Defendant filed a motion to disqualify Judge Haight pursuant to Code of Civil Procedure section 170.1, which was denied.
On July 11, 2008, counsel was appointed for defendant.
Defendant asserted his Arbuckle rights to have Judge Brown sentence him. For reasons that are not apparent on the record, Judge Van Stockum presided at the sentencing hearing. Apparently, Judge Brown was available and sitting in another courthouse in Chino.
People v. Arbuckle (1978) 22 Cal.3d 749.
Judge Van Stockum proceeded with sentencing. He reasoned that because he intended to sentence exactly in accordance with the omnibus plea bargain, there was no sentencing discretion left for Judge Brown or any other sentencing judge who would be equally bound by the plea bargain. In doing so, Judge Van Stockum correctly relied on In re Mark L. (1983) 34 Cal.3d 171, 176, which quoted People v. Arbuckle, supra, at pages 756-757 as requiring the judge who accepted the plea to conduct the sentencing hearing whenever he or she “‘retains sentencing discretion under the agreement.’” The judge then sentenced defendant to probation exactly in accordance with his plea bargain.
A timely notice of appeal was filed based on the sentence or other matters occurring after entry of plea and challenging the validity of the plea. The request for a certificate of probable cause was denied.
FACTS
Defendant and a coparticipant were inmates at the state prison in Chino. A correctional officer saw defendant and the coparticipant striking and kicking a third inmate. He observed defendant use a closed fist in both striking and slashing motions. The victim had two puncture wounds to his lower right back and one puncture wound to the left side of his back. He was transported to the hospital for treatment. At least one wound “bubbled up” as if a lung was punctured. No weapon was found.
DISCUSSION
The defendant has appealed, and at his request we appointed counsel to represent him. Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a statement of facts, identifying potential issues on appeal and requesting this court to undertake an independent review of the entire record.
We provided defendant with an opportunity to file a personal supplemental brief, but he has not done so.
We have now concluded our independent review of the record (People v. Kelly (2006) 40 Cal.4th 106) and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli J.