Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR913258
Ruvolo, P.J.
Introduction
Appellant’s counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.
Although no issues have been briefed, appellant’s counsel did point out one issue as an item “in the record that might arguably support the appeal” under Anders v. California (1967) 386 U.S. 738, 744. He asks that we consider whether the trial court committed prejudicial error in considering hearsay evidence provided by Donna Kelsay, the victim’s mother, in sentencing appellant.
Procedural and Factual Background
An information was filed by the Lake County District Attorney on November 9, 2007, charging appellant with one count of attempting to dissuade a crime victim, Jon Andrew Kelsay, from reporting a crime (Pen. Code, § 136.1, subd. (c)(1)), and one count of making a criminal threat against Jon Andrew Kelsay (§ 422). It was also alleged that appellant had suffered a prior conviction for a serious or violent crime within the meaning of sections 1170.12, subdivisions (a)-(d) and 667, subdivision (a)(1). The information also alleged that appellant had suffered three prior convictions for which he had served a prior prison sentence, and that he had not been free from imprisonment for five years, within the meaning of section 667.5, subdivision (b). At the arraignment on the information, appellant pleaded not guilty to all of the charges and allegations, and a jury trial was set for February 26, 2008.
All further statutory references are to the Penal Code unless otherwise indicated.
All further dates refer to the calendar year 2008 unless otherwise indicated.
A Marsden motion was made by appellant and later withdrawn. On the day of trial, appellant withdrew his not guilty plea and entered an “open” plea of no contest to count 2, and he admitted the sentence enhancement allegations pled in the information. In return for the change of plea, count 1 was dismissed by the prosecution with a Harvey waiver. Necessary and appropriate waivers of his constitutional rights occasioned by the change of plea were explained to, and made by, appellant. As a factual basis for the plea, appellant understood the court would rely on the police report and a statement by the prosecution. The police report clearly provides factual support for the plea.
People v. Marsden (1970) 2 Cal.3d 118.
People v. Harvey (1979) 25 Cal.3d 754.
A motion was made by appellant prior to sentencing seeking to reduce the charge, pursuant to section 17, subdivision (b), which was opposed by the prosecutor.
Sentencing was held on May 19. Appellant’s motion to reduce the charge was denied by the trial court at that time. We discern no abuse of discretion in the court’s ruling as to this motion.
Probation was denied, and appellant was sentenced to the upper term of three years for count 2, which was doubled as a result of his admitted prior conviction for a serious felony (§ 1170.12). The court selected the upper term because appellant had a prior record of numerous convictions, his performance on parole was poor, and he was on parole at the time the current crime was committed, which factors were found to outweigh any mitigating factors. He received a sentence of three additional years based on his three prior prison terms (§ 667.5, subd. (b)), and a five-year prison term enhancement pursuant to section 667, subdivision (a)(1), for an aggregate term of 14 years in state prison.
Subsequently, appellant filed a handwritten motion to withdraw his plea on the grounds of ineffective assistance of counsel, which was denied by the trial court. We discern no abuse of discretion in the trial court’s ruling denying this motion.
An amended probation report was filed prior to sentencing which recommended that appellant be sentenced to an aggregate term of 14 years in state prison. Among the matters discussed in the report was a statement made by Donna Kelsay, the victim’s mother, in which she stated that she is fearful of appellant based on his prior conduct and his reputation for violence. While the court did consider “as credence to the recommendation” the “victim’s impact statement,” which indicated that there was “genuine fear of the defendant,” there is no indication that the court specifically relied on this statement in imposing a 14-year state prison sentence. In any event, while Ms. Kelsay herself was not a victim, as the victim’s mother, it was not error for the trial court to consider her statement. (People v. Mockel (1990) 226 Cal.App.3d 581.)
Disposition
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.
We discern no error in the sentencing. The refusal to grant probation, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.