Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCS21476, Esteban Hernandez, Judge.
AARON, J.
Henry David Brooks, Jr., entered a negotiated guilty plea to assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and admitted that he personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). In exchange, the prosecution agreed to dismiss the remaining charges, including attempted murder, robbery and conspiracy and gang allegations. The trial court stayed the execution of a six-year prison sentence and placed Brooks on probation for five years, conditioned, among other thing, on his serving 365 days in jail.
Statutory references are to the Penal Code.
Brooks admitted that he violated his probation after he was released from jail, and the court formally revoked his probation. The court sentenced Brooks to six years in prison—the middle term of three years for assault with force likely to cause great bodily injury plus a three-year enhancement for personally inflicting great bodily injury.
FACTS
On August 17, 2007, Brooks and four companions drank beer and had an altercation with another group in Imperial Beach. Subsequently, Brooks and his companions encountered Edward Kijanka, who was riding a bicycle, and accosted him. One of Brooks's companions struck Kijanka's head with a rock. After Kijanka fell on the street, the group kicked and punched him until he was unconscious. At one point the group stopped, walked away and returned to the unconscious Kijanka. The group then resumed punching and kicking him. Kijanka was transported to UCSD medical center after being found lying in the street. He could not remember what happened to him. Kijanka suffered a traumatic brain injury, and his nose was crushed in five areas, rendering him unable to breathe through his nose. He also suffered loss of hearing in his right ear and walks with a cane as a result of the assault.
Under the terms of Brooks's probation, he was to refrain from drinking, comply with a curfew, and maintain full-time employment or schooling. The probation officer cited Brooks for drinking, not complying with his curfew, and not being employed or in school.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue: whether the trial court abused its discretion by not reinstating probation.
We granted Brooks permission to file a brief on his own behalf. He has responded.
Brooks contends that the amount of credit he can earn while in prison has been improperly limited to 20 percent of his sentence. Brooks claims that because he was a first-time offender his ability to earn work credits while in prison should not be restricted.
First, Brooks is mistaken about the percentage of his credit limitation; he is limited to earning credits amounting to 15 percent of his sentence—not 20 percent. (See § 2933.1.) It appears that Brooks is under the impression that his ability to earn credits is limited by the "Three Strikes" law, which limits the "total amount" of credits a prisoner with one or more prior strike convictions can earn to "one fifth of the total term of imprisonment imposed...." (§ 667, subd. (c)(5).) However, this provision of the Three Strikes law is not applicable to Brooks; although Brooks was convicted of a strike offense, he does not have prior strike convictions.
Second, Brooks is mistaken about the propriety of the restriction on his ability to earn credits. Section 2933.1, subdivision (a) provides that a person who is convicted of a violent felony "shall accrue no more than 15 percent of worktime credit...." Assault with force likely to cause great bodily injury coupled with personal infliction of great bodily injury is a violent felony. (§ 667.5, subd. (c)(8).) Brooks's ability to earn work credits in prison is properly limited to 15 percent of his total sentence under section 2933.1, subdivision (a).
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues raised by appellate counsel and by Brooks, has disclosed no reasonably arguable appellate issue. Brooks has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.