Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. Nos. CR910475, CR912672
Richman, J.
Counsel appointed for defendant Jeffrey Jonathan Happ has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was informed of his right to file a supplemental brief, but he elected not to do so. We have conducted that review, conclude there are no arguable issues, and affirm.
BACKGROUND
Our review shows the following concerning the two criminal cases against defendant that culminated in the consolidated judgment which is the subject of this appeal:
The first case, No. CR910475, commenced on August 21, 2006, when the District Attorney of Lake County filed a criminal complaint in which it was alleged that defendant committed two counts of assault. The first was alleged to have been committed by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In the second count, the assault was alleged to have resulted in the infliction of serious bodily injury (§ 243, subd. (d)) and to have involved the personal use of a deadly weapon (§ 12022, subd. (b)(1)). The complaint also included six enhancement allegations based upon defendant’s criminal history.
There was actually only a single attack, but it was charged according to alternative theories and outcomes.
Statutory references are to the Penal Code.
On February 2, 2007, the date set for the preliminary examination, defendant entered a plea of guilty to the first count, and admitted a single enhancement allegation that he had served a prior prison term within the meaning of section 667.5, subdivision (b). The court then ordered “the balance of the complaint dismissed with Harvey and Cunningham waivers,” and set sentencing for April 6. Before the plea was accepted, defendant agreed with the factual basis as stated by the prosecutor:
Subsequent dates are to the calendar year 2007 unless otherwise indicated.
“[O]n August 18, 2006, law enforcement was dispatched to 9477 Fox Drive in Cobb and that’s in the County of Lake in regards to a fight between two individuals. When law enforcement arrived they contacted Travis Everhart who was located on the deck outside of the residence. He was semiconscious and had blood on his face. The defendant was contacted as well, he had abrasions and swelling to his knuckles on his right hand. [¶] Mr. Everhart indicated to law enforcement at the scene that the defendant and Mr. Everhart had been drinking and an argument ensued and Mr. Happ threw him to the ground and started kicking him in the face. He also kicked—hit him in the face and body until Mr. Everhart could not move. [¶] . . . Mr. Happ was arrested at the scene and Mr. Everhart was taken to the hospital where the medical records show that he had numerous contusions to his face and body.”
Defendant has a long-term relationship with Everhart’s sister.
Defendant did not appear for sentencing on April 6. This led to the second case, No. CR912672. It was alleged in the complaint filed on May 3 that defendant’s failure to appear was a violation of section 1320.5, with an enhancing allegation that he was on bail at the time (§ 12022.1). The complaint was subsequently amended to include the same criminal history allegations set forth in the complaint in case No. CR910475. On May 11, defendant entered a plea of guilty to the failure-to-appear charge; all of the enhancement allegations were dismissed on the prosecutor’s motion.
The sentencing for both cases commenced on June 8, and continued on June 15. The trial court reviewed letters submitted by defendant and heard testimony from Mr. Everhart exculpating defendant. Defendant’s request for probation was denied by the court “because of the prior criminal record, the poor performance on probation, the prior convictions for crimes of violence, and the danger that is presented to others.” It then sentenced defendant to state prison for the aggravated term of four years on the assault plus one additional year for the prior conviction; the three-year sentence for the failure-to-appear charge was ordered served concurrently.
Defendant filed a timely notice of appeal.
DISCUSSION
In both cases, defendant’s guilty pleas were preceded by the admonitions and waivers required by Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122, and In re Yurko (1974) 10 Cal.3d 857.
At all relevant times, defendant was represented by counsel, who ably advanced his client’s interests.
The trial court did not abuse its discretion in denying defendant’s request for probation. Defendant did not receive a sentence unauthorized by law.
DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline, P.J., Haerle, J.