Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR584745
McGuiness, P.J.
Nathan Jose Clayton Marrufo (appellant) appeals from a judgment entered after he pleaded no contest to infliction of corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a) ) and admitted one prison prior (§ 667.5, subd. (b)). 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 do so. 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
A first amended felony complaint was filed June 29, 2010, charging appellant with: (1) infliction of corporal injury upon cohabitant Jane Doe (a pseudonym) on June 20, 2010 (§ 273.5, subd. (a), count 1); (2) false imprisonment of Jane Doe on June 20, 2010 (§ 236, count 2); (3) misdemeanor infliction of pain and suffering on a child under age 6 on June 20, 2010 (§ 273a, subd. (b), count 3), (4) infliction of corporate injury upon cohabitant Jane Doe on June 23, 2010 (§ 273.5, subd. (a), count 4); and (5) misdemeanor infliction of pain and suffering on a child under age 6 on June 20, 2010 (§ 273a, subd. (b), count 5). The complaint alleged appellant had suffered a prior conviction for violating section 273.5, subdivision (a), in March 2004 and that he was presumptively ineligible for probation under section 1203, subdivision (e)(4), due to three prior felony convictions. The complaint further alleged appellant had served a prior prison term for the March 2004 conviction (§ 667.5, subd. (b)).
According to the felony presentence report, on June 23, 2010, a deputy sheriff responded to Jane Doe’s (Doe) report of a domestic violence incident. Doe said she was in a relationship with appellant and was living with him and their six-year-old daughter. On June 20, Doe was driving herself, appellant and their daughter home because appellant was “extremely intoxicated.” While in the car, appellant yelled at Doe, demanding that she allow him to drive. When Doe refused to do so, appellant punched her in the head and arm and was “hitting her so hard” she was afraid she “might crash.” She tried to protect her head with her arm and keep the vehicle on the road. Their daughter screamed and cried for appellant to stop. The deputy observed multiple large bruises on Doe’s right shoulder and arm. Doe said they safely arrived at their house and her daughter brought her ice bags for her head. Doe had a severe headache all night from being punched. Her daughter told the deputy that her father pulled her mother’s hair and punched her while in the car. She cried as she told the deputy that she was scared and that she did not “like daddy to hurt my mommy.” Doe said her daughter suffered “emotional panic” because she had previously suffered injuries in an unrelated vehicle accident and “believed the car might crash again.”
Doe did not report the incident for three days because appellant was following her around and did not allow her to leave the house for fear someone might see her injuries. Doe believed appellant would beat her if she tried to leave and stayed in part to protect her daughter from witnessing another domestic violence incident. On June 23, 2010, when Doe asked appellant if he was going to finish painting their house, appellant became angry and ran towards Doe as she lay in bed. Doe put her leg up to keep him away and he punched her in the leg and began cursing at her. Doe asked her to stop because their daughter was present and she “would end up in a relationship just like theirs.” Appellant responded, “Good. I hope she finds a man just like me.” When Doe’s father came to the house shortly after the incident, Doe asked him to take appellant with him because they were not getting along. Doe’s father and appellant left the house, and Doe took her daughter to Doe’s mother’s house.
An emergency protective order was issued. Later that evening, appellant was contacted while walking down the highway. He was arrested and was advised of his rights. He said he did not know what Doe was talking about and that he never hit her. He did not know how she was injured, denied arguing with her on June 20, 2010, and could not think of any reason he should be in custody. When he was served with a copy of the protective order, he said he did not understand how the judge could require him to move out of his own house. A suspected child abuse report was also filed.
On July 28, 2010, the trial court heard appellant’s motion under People v. Marsden (1970) 2 Cal.3d 118 to have his attorney relieved as counsel. The trial court denied the motion on August 12, 2010. On July 29, 2010, the trial court suspended criminal proceedings and appointed David M. Schneider, Ph.D., to evaluate appellant’s competency to stand trial, pursuant to section 1368. In a written report filed August 30, 2010, Schneider concluded appellant was not competent to stand trial due to various mental health issues. On August 30, 2010, appellant asked for a court trial on the issue of his competency. Donald Apostle, M.D., was appointed to reevaluate appellant’s competency, and in a report filed November 2, 2010, Apostle concluded appellant was competent. Criminal proceedings were reinstated that day.
On November 23, 2010, appellant waived his right to a preliminary hearing and waived his constitutional rights. He pleaded no contest to count 1 and admitted he had suffered a prior conviction for the same offense in March 2004. In exchange, the trial court dismissed the other four counts and the prior prison term allegation, with Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754), and it was agreed that appellant would be sentenced to three years in state prison—the mitigated term of two years for the conviction on count 1 plus one year for the prior conviction.
At the sentencing hearing held February 23, 2011, the parties confirmed that the plea agreement was that appellant would receive a three-year state prison sentence. However, the agreed-upon calculation was based on defense counsel’s erroneous belief that appellant’s admission of the prior conviction authorized the trial court to impose an additional year. Counsel noted that the same number of years could be achieved by having appellant admit his prison prior. Appellant stated this was “acceptable, ” and waived his constitutional rights and admitted the prison prior. The trial court sentenced appellant in accordance with the plea agreement to three years in state prison and awarded him 492 days in presentence credits. It issued a criminal protective order prohibiting appellant from having personal, electronic, telephonic or written contact with Doe and their daughter, with the exception of peaceful letter contact with the child. The trial court stated it would consider modifying the order to allow more contact with his daughter once he was out of custody, “as long as” “there’s been no problem between now and then.”
Discussion
We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. Appellant did not request a certificate of probable cause and there is no evidence of good cause to allow him to withdraw his plea. (See People v. Castaneda (1995) 37 Cal.App.4th 1612, 1616-1617 [clear and convincing evidence of good cause required to withdraw a plea].) The trial court did not err in denying appellant’s Marsden motion and appellant was represented by competent counsel throughout the proceedings. The trial court did not err in finding appellant competent to stand trial. There was a factual basis for the plea. There was no sentencing error. There are no issues that require further briefing.
Disposition
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.