Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. SCR-574884, SCR-571498
McGuiness, P.J.
Jakoby E. Javius (appellant) appeals from a judgment entered after he pleaded guilty in case number SCR-574884 to assault with a firearm (Pen. Code, § 245, subd. (a)(2) ) with personal use of a firearm (§ 12022.5, subd. (a)) and personal infliction of great bodily injury (§ 12022.7), and pleaded guilty in case number SCR-571498 to inflicting corporal injury upon a cohabitant (§ 273.5, subd. (a)). 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.
All further statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
An information was filed November 24, 2009, in case number SCR-571498 (the domestic violence case), charging appellant with inflicting corporal injury upon a cohabitant (§ 273.5, subd. (a), count 1) and personally inflicting great bodily injury in the commission of that crime (§ 12022.7, subd. (e)), and misdemeanor violation of an emergency protective order (§ 273.6, subd. (a), count 2). The information also alleged as to count 1 that the offense was a serious and violent felony (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)) and that appellant had suffered a prior felony conviction for a violation of section 273.5, subdivision (a)).
According to the presentence report, officers contacted Jane Doe regarding a domestic disturbance. Doe appeared to be fearful and nervous and cried during the conversation. She said she had been with appellant for approximately six years and that they had a five-year-old daughter and a two-year-old daughter together. On the evening of October 7 or 8, 2009, Doe fell asleep in the children’s bedroom after putting their two-year-old daughter to sleep. At approximately 1:30 a.m., appellant entered the bedroom and started shaking Doe violently, yelling at her about their lack of a sex life. Doe left the bedroom, closed the door behind her, then yelled back at appellant because she was upset. She walked downstairs and went outside to the patio. Appellant ran down the stairs, forcefully opened the patio door, grabbed Doe’s hair and dragged her by the hair back into the house, and struck her repeatedly in the face and arms. He then placed Doe in a chokehold until “she was desperately gasping for breath, felt her ‘eyes bulging from their sockets, ’ and believed she was going to die.” Doe believed she lost consciousness because the next thing she recalled was appellant standing at the top of the stairs, holding their crying two-year-old daughter and saying, “ ‘You’d better get this fucking baby before I beat the shit out of you again.’ ” Doe suffered two black eyes and bruises on her neck, head, face and upper arms. Her neck and throat were very sore, her voice was hoarse, and she had difficulty swallowing. She did not immediately report the incident because appellant had “continuously been with her” and she was afraid he would find out she contacted law enforcement. She eventually decided to report the incident because she feared he would hurt her again or even kill her.
The victim in this case was referred to by the pseudonym Jane Doe below and we will do the same on appeal.
The police arrested appellant and told him Doe had obtained an emergency protective order against him that prohibited him from having any contact with her. Later, when an officer returned to Doe’s home to give her a copy of the served emergency protective order, Doe’s home phone rang and the caller identification showed the call was from the Sonoma County jail. When Doe picked up the phone, a male voice called out Doe’s first name. When the officer asked who was calling, the caller responded, “Jakoby.” The officer identified himself and asked appellant why he was calling Doe when he had just been served with an emergency protective order. At that time, appellant disconnected the phone. Doe was “ ‘100% positive’ ” the caller was appellant.
On January 15, 2010, a felony complaint was filed in case number SCR-574884 (the attempted murder case), charging appellant with attempted premeditated murder (§§ 664, 187, subd. (a), count 1) while personally and intentionally using a loaded firearm causing great bodily injury (§ 12022.53, subd. (c)), assault with a semi-automatic firearm (§ 245, subd. (b), count 2) while personally using a firearm (§ 12022.53, subd. (a)), discharging a firearm in a grossly negligent manner (§ 246.3, count 3), being a felon in possession of a firearm (§ 12021, subd. (a)(1), count 4) and violating a protective order (§ 166, subd. (a)(4), count 5). The complaint alleged as to counts 1 and 2 that appellant inflicted great bodily injury (§ 12022.7, subd. (a)). It alleged as to all counts that appellant committed the offenses while released on his own recognizance (§ 12022.1).
The complaint was based on an incident that occurred on December 14, 2009. At approximately 12:25 a.m., officers responded to a report that gunshots had been fired near an apartment complex in Santa Rosa. A witness said she was awakened by gunshots and saw a man shooting at a car. Inside the apartment complex, the police found shell casings and an unexpended bullet and also saw some blood drops, which they followed to a nearby residence. When no one answered, the police forced entry. No one was home but the police found more blood drops in the bathroom.
At approximately 12:45 a.m., officers responded to a call from the emergency room of a hospital that a gunshot victim was being treated. They met with the victim, Korvell Mitchell, and Jane Doe, the victim in the domestic violence case. Mitchell had been shot in the chin, right forearm, and right leg. Doe told the police that she and Mitchell had left Doe’s children with a neighbor and were walking home from a convenience store when appellant jumped out of the bushes and confronted them in the parking lot of the apartment complex. Appellant asked about his daughters, which made Doe fearful because he had previously told her that if she ever allowed another man to be around his children, he would kill Doe and the other man. Doe saw appellant holding a gun and she and Mitchell began retreating. Appellant got into a car driven by another individual and the car backed up towards Mitchell and Doe. Mitchell and appellant were “verbally challenging” each other, and as Doe attempted to open the front door to her apartment, she heard multiple shots. She ducked down, Mitchell came up behind her, and they both entered the apartment. She saw that Mitchell had been shot, and she drove him to the hospital.
On March 9, 2010, pursuant to a negotiated disposition, appellant pleaded guilty in the attempted murder case to assault with a firearm (§ 245, subd. (a)(2), count 2, as amended), and admitted he personally used a firearm and inflicted great bodily injury. He entered the plea and admissions with the understanding he would be sentenced to an 11-year prison term. He also pleaded guilty in the domestic violence case to inflicting corporal injury upon a cohabitant (count 1) with the understanding he would serve an additional consecutive year in prison.
On April 26, 2010, appellant’s case was calendared for the possible filing of a motion to withdraw his plea and a conflict attorney was appointed to determine whether there was a basis for the motion. On May 6, 2010, the trial court found there were “no grounds for motion to withdraw plea.” It sentenced appellant to the agreed upon 12 years in prison, which was calculated as follows: (1) in the attempted murder case, the upper term of four years for the assault charge, a consecutive mid-term sentence of four years for the great bodily injury enhancement, a consecutive mid-term sentence of three years for personally using a firearm; and (2) in the domestic violence case, a consecutive sentence of one year (one-third of a three-year mid-term) for inflicting corporal injury on a cohabitant. The court awarded appellant 210 days of credit in the attempted murder case and 23 days of credit in the domestic violence case, for a total of 233 days. It imposed a restitution fine of $2,220 in the attempted murder case and imposed but stayed a parole revocation fine in the same amount (§§ 1202.4, 1202.45). It imposed a restitution fine of $600 and imposed but stayed a parole revocation fine in the same amount in the domestic violence case.
On September 1, 2010, in both cases, appellant filed a petition for a writ of habeas corpus alleging he was delusional and incompetent at the time he entered his plea. He attached to his petition a “Health Care Services Request Form” in which he alleged he needed psychiatric treatment, had been delusional for months, did not understand how he got to be in prison, was taken advantage of, and was very depressed. On September 22, 2010, appellant submitted a notice of appeal and a request for a certificate of probable cause, which the trial court deemed untimely. Appellant filed another petition for a writ of habeas corpus the following day, alleging he entered his guilty pleas involuntarily. He stated he was having a hard time making up his mind, his attorney pressured him to enter the pleas, and that he needed help. On October 21, 2010, this court directed the trial court to file appellant’s September 22, 2010, notice of appeal and to determine whether to grant or deny appellant’s certificate of probable cause. The trial court denied appellant’s request for a certificate of probable cause on October 28, 2010 and his petitions for writ of habeas corpus on November 5, 2010.
Discussion
We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. A defendant who wishes to withdraw a guilty plea must make a showing of good cause to do so by clear and convincing evidence. (See People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616-1617.) There is no such evidence here. Appellant initialed and signed written waiver forms acknowledging he understood his constitutional rights, was “freely and voluntarily” giving up those rights, and that no one had pressured him into entering the plea. In court, he confirmed he had understood his rights and was “freely and voluntarily” giving up those rights. When asked whether he had any questions, he responded he did not. Defense counsel stipulated there was a factual basis for the plea, “based on the police reports and investigation.”
Appellant was adequately represented by counsel at every stage of the proceedings. There was no sentencing error. There are no issues that require further briefing.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.