Opinion
A155579
09-16-2019
THE PEOPLE, Plaintiff and Respondent, v. JAVIER RYAN GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-18-94368)
This is an appeal from judgment following entry of a no contest plea by defendant Javier Ryan Garcia to one count of corporal injury to a spouse in violation of Penal Code section 273.5, subdivision (a). After accepting defendant's open plea, the trial court sentenced him to the middle term of three years in prison.
After defendant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende), in which she raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Counsel attests that defendant was advised of his right to file a supplemental brief in a timely manner, but he has not exercised this right.
Mindful that our review is limited to grounds for appeal occurring after entry of the plea (Cal. Rules of Court, rule 8.304(b)(5)), we have examined the entire record in accordance with People v. Wende and People v. Kelly. For reasons set forth below, we agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2018, a criminal information was filed charging defendant with felony carjacking in violation of Penal Code section 215, subdivision (a) (count one) and felony corporal injury to a spouse in violation of Penal Code section 273.5, subdivision (a) (count two). It was further alleged that, at the time of these offenses, defendant was released from custody on his own recognizance in Lake County within the meaning of section 12022.1, and that he had served a prior prison term for a felony conviction and re-offended within five years of completing said term within the meaning of section 667.5, subdivision (b).
Unless otherwise stated, all statutory citations herein are to the Penal Code.
On August 10, 2018, defendant pleaded no contest to count two, and the remaining count and special allegations were dismissed, the first such allegation with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
On October 4, 2018, the trial court sentenced defendant to a total term of three years in state prison, consisting of the middle term for count two, corporal injury to a spouse. In doing so, the trial court provided numerous reasons for denying probation and selecting the middle term, including the facts that defendant had numerous prior convictions for violent offenses, his criminal conduct was increasing in severity, he had recently been charged with serious felonies in Lake County for violence he committed against the same victim, and he had previously performed unsatisfactorily on probation. The trial court found as a factor in mitigation defendant's long history of substance abuse.
The trial court thereafter imposed upon defendant a $600 restitution fine (§ 1202.4) and a $600 fine to be suspended unless parole is revoked (§ 1202.44). The court further imposed a $40 court operations assessment under Penal Code section 1465.8; a $30 conviction assessment under Government Code section 70373; and a $150 probation report fee under Penal Code section 1203.1, subdivision (b). Lastly, the court awarded defendant 149 days of actual custody credits and 148 days of local conduct credits for a total of 297 days of presentence custody credits.
This timely appeal of the sentence or other matters occurring after entry of the plea followed.
DISCUSSION
Neither appointed counsel nor defendant has identified any issue for our review. Upon our own independent review of the entire record, we agree none exists. (People v. Wende, supra, 25 Cal.3d 436.) Defendant, represented by competent counsel, received a total prison term of three years, representing the middle term on count two, corporal injury to a spouse (§ 273.5, subd. (a)). This sentence, more lenient than the aggravated four-year sentence recommended by the probation department, was lawfully imposed following a contested hearing. In particular, before sentencing defendant, the trial court provided numerous reasons for denying probation and selecting the middle term, including defendant's long history of violent offenses, the increasingly serious nature of his criminal conduct, and his prior unsatisfactory performance on probation. (Cal. Rules of Court, rules 4.414, 4.420, 4.421; § 1170, subd. (b).) The court also acknowledged that defendant's long history of substance abuse constituted a mitigating factor. (Cal. Rules of Court, rule 4.423.)
The trial court then awarded defendant 297 days of presentence custody credits and ordered him to pay various fees, fines and assessments, including a $600 restitution fine (Pen. Code, § 1202.4, subd. (b)); $600 fine, to be suspended unless parole is revoked (Pen. Code, § 1202.44); $40 court operations assessment (Pen. Code, § 1465.8); $150 probation report fee (Pen. Code, § 1203.1, subd. (b)); and $30 conviction assessment (Gov. Code, § 70373).
Defense counsel thereafter moved the trial court to strike the fees and assessments imposed under Penal Code sections 1465.8 and 1203.1, subdivision (b), and Government Code section 70373, and to set the restitution fines at the statutory minimum of $300 and to stay their enforcement pending a showing of defendant's ability to pay. (See People v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 (Dueñas) [holding, in a case involving a homeless misdemeanor probationer who was unable to work due to a disability, that due process requires the trial court to conduct an ability-to-pay hearing and to ascertain a defendant's ability to pay before imposing assessments for court facilities (Pen. Code, § 1465.8) and court operations (Gov. Code, § 70373)].) The trial court granted defendant's postsentence motion in part and denied it in part, striking the $150 fee imposed under Penal Code section 1203.1, subdivision (b), and setting the restitution fines at the statutory minimum of $300, with their enforcement stayed, but upholding the assessments imposed under Penal Code section 1465.8 and Government Code section 70373 for $40 and $30, respectively. Accordingly, an amended abstract of judgment reflecting the court's ruling was filed on June 7, 2019.
Having reviewed the record, we conclude the trial court's sentencing and postsentencing decisions were proper. (Cal. Rules of Court, rules 4.414, 4.420, 4.421, 4.423; § 1170, subd. (b); see also People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [distinguishing Dueñas and noting that, given that the defendant was sentenced to prison for a lengthy term, the court could consider his "ability to earn prison wages over a sustained period" when imposing certain statutory fees and assessments]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages].)
Accordingly, based upon our independent review, we find no basis for reversal. Having ensured defendant has received adequate and effective appellate review, we affirm the trial court's judgment. (People v. Kelly, supra, 40 Cal.4th at pp. 112-113; People v. Wende, supra, 25 Cal.3d 436.)
DISPOSTION
The judgment is affirmed.
/s/_________
Wick, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.
Judge of the Superior Court of Sonoma County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------