Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCYKCRBF06-2362
CANTIL-SAKAUYE, J.
Defendant Michael Kenneth Allen argued with his girlfriend about a message she had received from an old male friend. Defendant grabbed her by the hair, pulled her from the bathtub of their motel room, and threw her against a wall and onto the floor. He put his knee on her chest, holding her on the floor, while he called her names and yelled at her. When he let her up she got dressed and tried to leave, but he grabbed her by the jacket and threw her onto the bed. He removed her jacket, grabbed her head, held her down with so much force that she could not breathe, and continued to yell at her. At one point, she was able to leave the motel room but she returned because she had no money and knew no one in the area. Defendant threw her back onto the bed, causing her neck to pop and crack. When they both left the motel room, she tried to run away but he grabbed her and tackled her to the ground. When a passerby intervened, defendant returned to their room and the girlfriend sought help from defendant’s boss, who got her a separate motel room. When defendant continued to harass her, she called the police.
Because defendant waived a preliminary hearing and pled guilty, our statement of facts is taken from the probation officer’s report.
Defendant pled guilty to corporal injury of a cohabitant. (Pen. Code, § 273.5, subd. (a).) In exchange, counts of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)) and false imprisonment (§ 236) were to be dismissed with a Harvey waiver, and defendant was to be placed on felony probation with credit for time served.
Hereafter, undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754. Our examination of the record does not reveal any formal dismissal of counts two and three. We shall direct the trial court to enter dismissals of those counts.
Defendant was released on his own recognizance on the conditions, among others, that he contact the probation officer and refrain from contacting the victim. He agreed that, if he violated any condition of his release, he could be sentenced to the maximum allowable term of imprisonment. (§ 1192.5; People v. Cruz (1988) 44 Cal.3d 1247.)
At a contested hearing, evidence was presented that defendant contacted the victim and did not contact the probation officer. The trial court found that defendant violated the conditions of his release.
Defendant was sentenced to state prison for two years, awarded 58 days of custody credit and 32 days of conduct credit, and ordered to pay a $200 restitution fine (§ 1202.4), a $200 restitution fine suspended unless parole is revoked (§ 1202.45), a $20 court security fee (§ 1465.8), and a $148 booking fee.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Our review of the record reveals that, although the trial court did not sentence defendant on counts two and three, it also did not formally dismiss those counts. On remand, the trial court shall enter formal dismissals of counts two and three.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to enter formal dismissals of counts two and three.
We concur: RAYE, Acting P.J., MORRISON, J.