Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCWLCRCR08-83321
NEEDHAM, J.
Britton Leonard Azbill, Jr. appeals from a judgment of conviction and sentence imposed after he entered a plea of no contest. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738) in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.
I. FACTS AND PROCEDURAL HISTORY
A felony criminal complaint alleged that Azbill committed felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and interfered with his victim’s civil rights with actual physical injury (§ 422.7, subd. (a)). In regard to the first count, the complaint further alleged that Azbill personally inflicted great bodily injury (§ 12022.7, subd. (a)) and committed the offense as a hate crime (§ 422.75, subd. (a)).
Except where otherwise indicated, all statutory references are to the Penal Code.
At the preliminary hearing, evidence was presented that on March 23, 2008, an eyewitness observed Azbill stab Eric Lincoln in the leg, cut him above his eye, and say, “I’m going to kill you, you faggot.”
After the preliminary hearing, the district attorney filed an information against Azbill, containing the same charges and allegations as the felony criminal complaint.
In May 2008, while represented by counsel, Azbill entered a no contest plea to the assault count (§ 245, subd. (a)(1)). The remaining count and allegations in the information were dismissed, subject to a Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754). The parties stipulated there was a factual basis for Azbill’s plea. In regard to his sentence, the plea was made open to the court and the matter was referred to the probation department for a report. Before entering the plea, the court had advised Azbill of his Boykin/Tahl rights and the penal, financial, and immigration consequences of his plea. (See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.)
The probation department’s report recommended denial of probation and imposition of the upper term of sentence. The report indicated that Azbill had numerous prior juvenile violations and adult convictions, including battery (§ 242), aggravated assault (§ 245, subd. (a)(1)), vandalism (§ 594, subd. (b)(1)), disturbing the peace (§ 415), interference with exercise of civil rights (§ 422.6, subd. (a)), and battery on school, park or hospital property (§ 243.2, subd. (a)). The report also advised that Azbill was on probation when he committed the present offense and his prior performance on probation was unsatisfactory. The probation department stated: “What makes this case particularly frightening is that Mr. Azbill denies any responsibility and displays no remorse. . . . Mr. Azbill began his physically abusive criminal behavior as a juvenile and has continued to date. Given his propensity towards violence, it is fortunate that no one has been killed or permanently injured. . . . For nearly a dozen years the defendant has chosen to disregard the laws of the land, set in place to protect everyone. Some will say that he is young and needs to be given treatment. Mr. Azbill has been in the system and has been afforded the opportunity several times over to seek help and make change. He has chosen to ignore these chances and has now graduated to an allegation on the original police report in this matter of attempted murder. . . . If not checked, this defendant will likely kill someone in the future. [¶] Our job is to secure the safety of society, and that requires Mr. Azbill be incarcerated in the State Prison System. He needs to understand that his desire to drink, then becoming a threat to anyone in his path, will not be tolerated.”
Azbill filed a Statement in Mitigation through his attorney, in which he asked the court to suspend imposition of sentence and place him on formal probation. Azbill’s attorney informed the court that Azbill desired help with his substance abuse problem and was willing to attend an inpatient long-term treatment program.
At the sentencing hearing on July 24, 2008, Azbill was represented by counsel. The court indicated it had read and considered defense counsel’s statement in mitigation, the probation report, and a letter from Azbill that was attached to the probation report. The court denied Azbill’s request for probation for the reasons expressed in the probation report. In imposing the four-year upper term for the violation of section 245, subdivision (a)(1), the court stated: “I would note—and I’m in agreement with the statement of the circumstances in aggravation—that he has engaged in violent conduct that indicates a serious danger to society. The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness. The defendant was on probation when the crime was committed, and the defendant’s prior performance on probation was unsatisfactory. [¶] No circumstances in mitigation were found. I think it’s clear that on balance, the aggravating circumstances far outweigh the circumstances in mitigation.” (Italics added.) Azbill was credited with 183 days for time served.
The court also imposed an $800 restitution fine (§ 1202.4) and suspended imposition of an $800 parole revocation fine (§ 1202.45). The original abstract of judgment included in the clerk’s transcript contained a $50 drug lab fee (Health & Saf. Code, § 11372.5, subd. (a)), although the reporter’s transcript does not indicate that the court had ordered that fee. The trial court subsequently issued a new abstract of judgment omitting the fee.
The court stated it was imposing and staying a $2400 parole revocation fine pursuant to section 1202.45, but section 1202.45 limits a parole revocation fine to the amount of the restitution fine imposed under section 1202.4. (§ 1202.45.) The minute order from the sentencing hearing and the abstract of judgment indicate a parole revocation fine of $800, equal to the amount of the restitution fine.
This appeal followed.
II. DISCUSSION
Azbill’s appellate counsel has represented that he served Azbill with the opening brief on appeal and advised Azbill of his right to submit a supplemental brief on his own behalf. On December 9, 2008, within the 30-day period, we received a supplemental writing from Azbill.
In his supplemental writing, Azbill contends that his four-year sentence was harsh and he requests that the sentence be reduced to the midterm. He explains that he was “loaded and [b]lacked out on alcohol” and did not know what he was doing when he cut the victim. He also advises that he told the judge he was sorry and needed treatment for alcohol, his mother died since he went to prison, he grew up in an environment without leadership, he has had a hard life, he had to grow up fast, and he “didn’t have a chance to actually enjoy bein[g] a child as a child, because of where [he] grew up.”
We find no arguable issues on appeal. There is no legal error or prejudicial abuse of discretion in the imposition of the upper term of sentence, particularly in light of Azbill’s recidivism. (Cal. Rules of Court, rule 4.421(b)(2); People v. Black (2007) 41 Cal.4th 799, 818; People v. Stuart (2008) 159 Cal.App.4th 312, 314.)
There are no legal issues that require further briefing.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.