Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE605160
ELIA, J.Pursuant to a negotiated disposition, defendant Jay Botelho pleaded no contest to one count of inflicting corporal injury upon a child (Pen. Code, § 273d, subd. (a), count one); assault with force likely to produce great bodily injury (§ 245, subd. (a)(1), count two); and one count of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a), count three). With respect to count one, defendant admitted that he personally inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) Further, defendant admitted that he had a prior conviction for a serious or violent felony within the meaning of sections 667, subdivision (b) through (i) and 1170.12, and had served a prior prison term within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code.
In exchange for his no contest pleas, defendant was promised his sentence would be 16 years in state prison (top/bottom). When the court sentenced defendant on April 27, 2007, the court imposed the negotiated sentence of 16 years consisting of the following: the mid-term of four years on count one, doubled pursuant to sections 667, subdivision (b) through (i) and 1170.12, plus three years for the personal infliction of great bodily injury enhancement for a total of 11 years; two concurrent midterms of three years, doubled because of the strike prior for count two and three; plus a consecutive term of five years for the prior serious or violent felony conviction. (§ 667, subd. (a).)
Defendant filed a timely notice of appeal.
We appointed counsel to represent defendant in this court. Counsel filed an opening brief that stated the facts, but raised no specific issues. On October 4, 2007, we notified defendant of his right to submit written argument on his own behalf within 30 days. To date, we have not received a response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396], we have reviewed the entire record and have concluded there is no arguable issue on appeal. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.)
The facts underlying each count are taken from the probation report.
On May 29, 2006, Sunnyvale police were called to the residence of Liza S. Ms. S. had called the police to report that defendant had physically abused both her and her five-year-old son. When the police arrived at Ms. S.'s residence, Ms. S. had red marks on her face, a fat, bloody lip and a bite mark on her hand. Ms. S.'s son was sitting in the corner crying while he held an ice pack on his face. Ms. S.'s son had been badly beaten. His right eye was swollen shut.
Ms. S. explained that she had been living with defendant for approximately one year. Defendant was the father of her four-month-old baby, but not the father of her five-year-old son. Ms. S. reported that she was in the kitchen of her apartment when she heard defendant yelling at her son because he was not practicing his "A-B-C's" as he had been instructed to do. She saw defendant punch, slap, and choke her son until he fell to the ground. While her son was on the ground, defendant began to kick and stomp on his chest and rib area. Her son's face began to bleed profusely. When Ms. S. attempted to intervene, defendant began punching her in the face and bit her on the hand. After he cleaned himself, defendant fled the apartment. Ms. S.'s son was admitted to the Stanford Trauma Center for evaluation.
On May 30, 2006, defendant surrendered to the police. He was served with an emergency protective order and booked into the Santa Clara County main jail.
Procedural History
The Santa Clara County District Attorney charged defendant by way of an amended information dated June 9, 2006, with the three counts to which defendant ultimately entered his pleas. The amended information alleged that defendant personally inflicted great bodily injury on the victim. Further, the amended information alleged that defendant had a prior conviction for unlawful sexual intercourse with a minor (§ 261.5) for which he served a prison term (§ 667.5, subd. (b)) and a prior conviction for child abuse with personal infliction of great bodily injury (§ 273a, subd. (a)).
On December 5, 2006, before defendant entered his pleas of no contest, he was advised of his privilege against self-incrimination, his right to confront his accusers and his right to trial by jury as required by Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709], and In re Tahl (1969) 1 Cal.3d 122. Defendant freely and voluntarily waived those rights. Defendant was advised that the maximum potential sentence for all charges was 23 years. The court advised defendant of the immigration consequences of conviction and other consequences of his pleas of no contest. Counsel stipulated to a factual basis for the pleas. Defendant waived time for sentencing.
On February 16, 2007, the case came on for hearing regarding a potential motion to withdraw defendant's pleas. Defendant's counsel was to file a noticed motion. The record does not contain any written motion to withdraw defendant's pleas. Nor does the record show that there were any additional hearings concerning the potential motion.
As noted, the court sentenced defendant to an aggregate term of 16 years in state prison. In addition, the court ordered defendant to pay a restitution fine of $9600. (§ 1202.4.) The court imposed and stayed a parole revocation fine in the same amount. (§ 1202.45.) The court ordered defendant to pay $3,780 in direct victim restitution. (§ 1202.4, subd. (f).) The court imposed a $60 court security fee pursuant to section 1465.8. The court awarded defendant 323 days actual credit plus 48 days conduct credits (§ 2933.1, subd. (c)) for a total of 371 days credit for time served.
In conclusion, after a comprehensive review of the entire record, we have failed to discover any issue requiring this court's attention.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J. PREMO, J.