Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 199197.
McGuiness, P.J.
Hector Cintron (appellant) appeals from a judgment entered after the trial court revoked his probation and sentenced him to three years in state prison. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.
Factual and Procedural Background
An information filed July 19, 2006, charged appellant with three counts of assault by means of force likely to inflict great bodily injury (Pen. Code, § 245, subd. (a)(1) ) and alleged as to the first count that he personally used a deadly weapon, a knife. According to the probation report, appellant punched and kicked the victim three separate times and brandished, but did not use, a knife.
All further statutory references are to the Penal Code.
Appellant pled guilty to the third count and the remaining two counts were dismissed as part of a plea agreement. At sentencing, the trial court suspended imposition of sentence and placed appellant on formal probation for three years. The terms of his probation required him to, among other things, serve one year in county jail and obey all laws.
A petition to revoke probation was filed on June 20, 2007, alleging appellant had vandalized a bus shelter in violation of section 594. Appellant admitted the violation on August 8, 2007. The trial court reinstated the original terms and conditions of probation and ordered appellant to serve an additional 76 days in jail. A second petition to revoke probation was filed on August 31, 2007, but was later withdrawn.
A third petition to revoke probation was filed on April 29, 2008, on the ground that appellant assaulted a 43-year-old woman by grabbing her and striking her with his cane. At a contested probation revocation hearing, the victim testified that she and appellant had previously been in a relationship for seven or eight years and have a four-year-old child together. She testified she was a prostitute and appellant was initially her client, but that they fell in love.
She testified that on the morning of April 26, 2008, she and appellant were “supposed to... go to a park to... to talk and just hang out for a minute.” She did not want to go with him and “kept on telling him, ‘Later. Later.’ ” Appellant grabbed the victim’s sunglasses, pulled her hair and hit her back of her head with his walking cane. Appellant threatened to kill her if she called the police and “sen[t] him to jail.” She testified that despite the threats, she “was going to make sure” she “show[ed] up for court” and “that the police were going to keep him” because she was tired of being beaten and felt “[s]omething had to be done.” Photographs of her injuries were admitted into evidence. On cross-examination, the victim testified she had consumed crack cocaine “[h]ours and hours before” the incident. She also testified that she takes psychotropic medications.
John Guglielmelli testified that he called the police on April 26, 2008, after he saw appellant “yelling and screaming” and swinging the victim around by her hair “like a rag doll.” He described appellant’s demeanor as “[v]iolent” and said appellant held the victim as he hit her “hard” with his fist. He testified that when people asked appellant to stop, appellant said, “This is my bitch. Don’t tell me what to do. It’s my bitch.” A recording of Guglielmelli’s 911 call to the police was played in court. On cross-examination, Guglielmelli testified that he was approximately 40 to 50 feet away, inside a building and looking out a window, when he observed the incident.
Appellant testified that he and the victim slept in a sleeping bag in a park on April 25, 2008, and that he saw the victim smoke crack at about 8 a.m. on April 26, 2008. He denied pulling the victim by her hair or hitting her with his cane and testified he did not touch the victim and only wanted her to give him his money back. He testified that he believed the photographs that were admitted into evidence showed the victim sunburned from having sunbathed in the park.
The victim testified on cross-examination that she had sunbathed in the park two days before the incident.
The trial court revoked appellant’s probation and sentenced him to three years in state prison, the middle term for a violation of the underlying offense, section 245, subdivision (a)(1).
Discussion
We have completed our independent review of the record and find no arguable issues. Appellant was adequately represented by counsel throughout the proceedings. The evidence supports the trial court’s finding of a violation of probation. There was no sentencing error in committing appellant to the midterm of three years in state prison. There are no issues that require further briefing.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.