Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR912248-B
Ruvolo, P.J.
Appellant Ricardo Tapia Muniz appeals from a 15-year-to-life state prison sentence he received (subject to local custody credits) after he pleaded guilty to aggravated mayhem (Pen. Code, § 205) and admitted the truth of a sentencing enhancement. Appellant’s counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant was notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally.
All subsequent undesignated statutory references are to the Penal Code.
Appellant was originally charged by criminal complaint filed by the Lake County District Attorney on March 20, 2007, with one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)), aggravated mayhem (§ 205), participation in a criminal street gang (§ 186.22, subd. (a)), with sentencing enhancements alleging that appellant committed the crimes for the benefit of a street gang (§ 186.22, subds. (b)(1)(C) & (b)(4)). The complaint also alleged a sentencing enhancement alleging that great bodily injury was suffered by the victim, within the meaning of section 12022.7, subdivision (b).
On March 23, 2007, appellant pleaded not guilty to all charges, and denied the specially pled allegations. The preliminary hearing was continued several times, and appellant changed his plea on October 26, 2007, before the preliminary hearing took place. On that date, appellant pleaded guilty to count 2 (aggravated mayhem; § 205) and admitted the special allegation that he committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)). In return for the change of plea, the remaining counts were dismissed as were the remaining special allegation. At the time the plea was entered, appellant was advised of the constitutional rights he was waiving by virtue of entering the plea, to which he voluntarily agreed. Sentencing was set for December 7, 2007, and thereafter continued to January 18, 2008.
All further dates are in the calendar year 2008, unless otherwise indicated.
Prior to sentencing, the county probation department recommended that the court deny probation and sentence appellant to 15 years to life in state prison. A sentencing statement was filed on behalf of appellant which argued in favor of a finding that there existed “unusual circumstances” justifying a grant of probation. (See Cal. Rules of Court, rule 4.413.) A number of supporting letters accompanied the sentencing statement.
At sentencing, and after counsel for both sides argued, the court ordered that appellant be referred to the California Department of Corrections (CDC) for a report and recommendation pursuant to section 1203.03. The court also requested the county probation department to prepare a supplemental report. Sentencing was continued to May 2.
A diagnostic study and recommendation was submitted by CDC in a written report dated February 28. In the report, the CDC recommended that a state prison sentence be imposed. Appellant’s counsel submitted a written report from a licensed psychologist, Dr. Kevin Kelly, who conducted a study of appellant and his family and who concluded that appellant “would do well on probation and could complete probation in the community successfully.” A supporting letter from one of appellant’s teachers was also submitted.
At sentencing on May 2, and after counsel were afforded a further opportunity to address the issue, the trial court denied probation and sentenced appellant to state prison for a term of 15 years to life, imposed a restitution fine of $2,000 (with a further fine of $2,000 ordered suspended unless parole was revoked; § 1202.45), and granted appellant a total of 413 days local custody credit.
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.
We discern no error in the sentencing. The refusal to grant probation, and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
We affirm.
We concur: Reardon, J., Sepulveda, J.