Opinion
E041503
5-3-2007
THE PEOPLE, Plaintiff and Respondent, v. BRANDON JOHN KENNEDY, Defendant and Appellant.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant has appealed from his conviction of a violation of Penal Code section 273.5, subdivision (e)(1) and the admission of a strike prior pursuant to sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1).
All further statutory references are to the Penal Code unless otherwise designated.
I
FACTS
At the time defendant entered his plea, his counsel and the prosecutor stipulated that the preliminary hearing transcript provided a factual basis for the plea. We take our recitation of the facts from that transcript contained in the record on appeal.
On April 29, 2006, Ms. R. and defendant resided in Ms. R.s home in Riverside County. Prior to going to bed that night, Ms. R. had secured the house by locking all of the downstairs doors; she intended to lock defendant out of the house because he had been drinking alcohol and taking Vicodin pills. About 10:30 p.m., defendant, who had been living with Ms. R. for about two months, broke into the house by coming through a second story bedroom window. The window through which defendant entered was located in the upstairs bedroom where defendant and Ms. R. usually slept. That evening Ms. R. slept across the hallway in her mothers bedroom, and she had locked the door to the room before going to bed. Defendant also broke through this locked interior door and proceeded to assault Ms. R. by pouring water over her head, biting her ear, hitting her in the face, and pushing her onto the bed each time she tried to leave the bedroom. Defendant wanted to know why Ms. R. had locked him out of the house.
When defendant eventually left the bedroom to pack his belongings, Ms. R. managed to get to the downstairs portion of the house and call her sister. Ms. R. informed her sister that defendant had been taking pills and drinking and that she was fearful of him. She told her sister to call the police if Ms. R. did not call her back within 30 minutes; she thought this would give defendant sufficient time to move his belongings to his truck and leave. Ms. R. then tried to leave the residence, but defendant prevented her from doing so.
Defendant remained at the house and continued his assaults on Ms. R. He threatened to kill her that night. He repeatedly backhanded her, elbowed her in the back, pulled her hair and choked her until she lost consciousness. Each time she would regain consciousness, fight back, and try to escape, defendant would repeat his assaults. Ms. R. testified she could not breathe, and she felt she was going to die. Defendant also pulled the cord from her mobile phone to prevent her from calling for help. When Ms. R.s mother arrived at the house, defendant ran to his truck and drove off.
Ms. R.s injuries were manifested by bruising all over neck, knees, and arms. She had rug burns on her knees and elbows and portions of her hair fell out when she took a shower.
After defendant left, Ms. R. called 911 and was subsequently interviewed by a Riverside County Sheriffs deputy.
II
PROCEDURAL HISTORY
Defendant was charged by in an information filed August 16, 2006, with felony violations of section 273.5, subdivision (e)(1), corporal injury to a spouse or cohabitant, with a previous conviction of section 273.5, subdivision (a); section 245, subdivision (a)(1), assault by means of force likely to produce great bodily injury; section 422, making criminal threats; section 236, false imprisonment by violence, menace, fraud, and deceit; and section 591, removing a telephone line. A strike prior pursuant to sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1) was also alleged. Defendant, represented by counsel, entered a not guilty plea.
On September 29, 2006, pursuant to a plea agreement with the district attorney, defendant, represented by counsel, withdrew his previously entered not guilty plea and pleaded guilty to the section 273.5, subdivision (e)(1) charge. He also admitted the strike prior allegation in exchange for a stipulated sentence of four years in state prison. The court imposed the mitigated term of 2 years on the substantive offense and doubled that pursuant to the strike prior admission. The court awarded defendant 120 days presentence credits, imposed a restitution fine in the amount of $800, and stayed an $800 parole fine pending defendants successful completion of parole. The court accepted the stipulation by both counsel that the preliminary hearing provided a factual basis for the entry of the plea and admission. The remaining charges were dismissed.
Defendant was on probation at the time of the commission of the charged offense. The court, having previously found the charged offense constituted a violation of defendants probation on two prior convictions, revoked and terminated his probation on those cases. One, a misdemeanor matter, resulted in suspension of all fines and fees. The other matter, the underlying felony prior for the section 275 conviction, resulted in the court imposing a five-year midterm state prison sentence with credit for 234 days, to be served concurrently with the charged offense. Minimum restitution fines and parole fines were imposed, the parole fine stayed. The court denied defendants request for a Cruz waiver.
People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.
III
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (l979) 25 Cal. 3d 436, and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record. We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
IV
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
McKINSTER, J.