Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06HF0514, M. Marc Kelly, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
On July 13, 2006, Robbie Paul Horton (defendant) pled guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), with a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (e)). He was sentenced to a total of nine years in state prison. The sentence was suspended and he was placed on five years probation, subject to certain conditions, including that he refrain from using unauthorized drugs, that he submit to drug testing, and that he attend and complete a batterers’ treatment program. On March 22, 2007, defendant admitted to having violated probation by having a positive drug test and failing to complete the batterers’ treatment program. The previously suspended nine-year sentence was then imposed. Defendant filed a notice of appeal with this court following the imposition of sentence on March 22, 2007.
We appointed counsel to represent defendant on appeal. On August 2, 2007, counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but requested that this court conduct an independent review of the record on defendant’s behalf. We examine the entire record ourselves to see if any arguable issue is present. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.)
The charges arose from the following summary of facts: At a preliminary hearing, an investigator with the Orange County Sheriff’s Department testified as to the events occurring on December 6, 2005, when he responded to a call at Scripps Hospital. He stated that the victim, defendant’s girlfriend, was receiving treatment in the emergency room for injuries she claimed defendant had inflicted. At the time of trial, the People were unable to locate the victim. The parties and the court had extensive discussion on the record concerning the admissibility of hospital records, victim statements made to medical personnel and to a social worker, and four Tahl forms pertaining to prior cases against defendant involving a different victim. Defendant pled guilty, stating: “[O]n December 4, 2005, I . . . willfully and unlawfully assaulted Jane Doe with force likely to produce great bodily injury, and I did inflict great bodily injury.”
Before accepting the guilty plea, the court gave defendant extensive warning to the effect that any future violation of probation would result in a nine-year prison term. The court stated: “This is a pretty harsh punishment if you violate any terms and conditions of your probation, Mr. Horton. You understand that?” Defendant responded, “Yes, sir.” The court continued: “Okay. And I think, your lawyer will tell you this court’s reputation. If you violate any terms and conditions of your probation, you would be coming back in front of me, and obviously . . . if you are charged with a probation violation, you would have a right to have a hearing . . . . But if it’s found that you are in violation of your probation, then you would be sentenced to nine years in state prison. And I want to make sure that you are aware that that’s the circumstances, and I’m up front with that. And you understand this court’s reputation with respect to execution suspended. So is that what you want to do, Mr. Horton?” Defendant replied, “Yes, sir.”
In addition, the court expressed concern about defendant’s ability to comply with the conditions of probation. It stated, with respect to other cases: “Well, before I pronounce judgment on you, Mr. Horton, the court should indicate for the record that I did read the petition for probation violation, the petition filed because of your felony probation 02SF0419. And, quite frankly, probation doesn’t really think that you are going to make it on probation. They don’t recommend probation, and that is because of your own past record. I mean, on both of these misdemeanor probations and the felony probation, you were given numerous opportunities . . . .” The court then read into the record a description of defendant’s past recalcitrance as recounted in a probation violation petition. The court further warned: “Quite frankly, probation says no, and . . . based on the nature of the facts that have been represented to me, most likely you deserve state prison if you are guilty of these crimes, what you are pleading guilty to. [¶] The district attorney has asked the court to accept this plea based on the fact that they have some difficulties, evidentiary difficulties with their case and with their witnesses, and it is felt that this was a disposition that was fair in light of those circumstances. [¶] What I’m telling you is if you come back in front of me, okay, if you treat . . . this probationary grant like you did your previous probations, you are going to state prison for nine years. So I want to make sure, I’m looking you in the eye and telling you that because you have not succeeded on probation before. So you understand the consequences here, Mr. Horton?” Defendant responded in the affirmative. The court then continued its warning, along similar lines.
At the subsequent probation violation hearing, the People presented evidence to show that defendant had had a positive drug test and had failed to complete the batterers’ treatment program. Both defendant and his probation officer testified. Defendant could not contest the assertion that he had violated probation, but made efforts to show mitigating factors. He admitted to violating probation, but requested that the court sentence him to the minimum term, rather than nine years. The court imposed the previously suspended nine-year sentence.
Defendant’s appellate counsel briefly indicated that a possible claim of ineffective assistance of counsel appeared from the record, in that defendant’s trial counsel may have failed to properly advise defendant concerning the severe consequences of entering a guilty plea. However, appellate counsel gave no indication that the claim was arguable. Nonetheless, we reviewed the issue. Based on the teachings of People v. Ledesma (1987) 43 Cal.3d 171, 215-218, we conclude the claim is not viable.
This court informed defendant that he could submit a supplemental brief concerning this appeal and gave him at least 30 days to do so. Defendant submitted three handwritten statements which were filed on September 5, 2007. We treat these materials as a request for the appointment of new counsel and the exclusion of trial counsel, and a supplemental brief, respectively.
In one statement, defendant requested that this court appoint different appellate counsel, stating without explanation that he believed the appointed attorney had a conflict of interest. Defendant’s request to appoint new counsel is denied. An opening brief has already been submitted on his behalf and he has had an opportunity to file a supplemental brief raising any additional issues. Moreover, he has failed to provide any information whatsoever on the nature of the perceived conflict of interest.
In another statement, defendant requested that his trial counsel neither receive any notice with respect to the appeal nor assist in the appeal in any way. Trial counsel has made no appearance in this matter and is not attorney of record on the appeal. Defendant’s request with respect to trial counsel is moot.
Defendant raises two issues in his supplemental brief. First, he says he was deprived of his Sixth Amendment right to effective assistance of counsel. Second, he asserts that the nine-year sentence constitutes cruel and unusual punishment under the circumstances. Each of these issues appears to be predicated on the assertion that defendant had at one point been offered a two-year sentence but, based on the “urging” of his trial counsel, he ultimately accepted a nine-year sentence instead. However, defendant cites no portion of the record, and we have found none on our own, to show that he was ever offered a two-year sentence. Furthermore, it is too late to challenge the July 13, 2006 judgment.
We have examined the record and found no other issues to argue. (People v. Kelly, supra, 40 Cal.4th 106; People v. Wende, supra, 25 Cal.3d 436.) The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.