Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge, Super. Ct. Nos. 198697, 178607 & 156081
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
FACTS AND PROCEEDINGS
On February 20, 2008, appellant, Frank Armando Nall, was charged in a criminal complaint with attempted murder (Pen. Code, §§ 664 & 187, subd. (a), count one), assault likely to cause great bodily injury (§ 245, subd. (a)(1), count two), corporal injury to a spouse/cohabitant/child’s parent (§ 273.5, subd. (a), count three), and making criminal threats (§ 422, count four). As to each count, an enhancement was alleged that appellant inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The complaint further alleged that appellant had a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (b) through (i) & 1170.12, subds. (a) through (d)) and section 667, subdivision (a)(1).
Unless otherwise designated, all statutory references are to the Penal Code.
On May 28, 2008, appellant entered into a plea agreement in which he would admit count two and the great bodily injury enhancement with a sentence lid of seven years in exchange for the dismissal of the remaining allegations. The court advised appellant of the consequences of his plea. The court gave and appellant acknowledged and waived his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl). Appellant’s counsel stipulated that the court could consider the preliminary hearing as the factual basis for appellant’s plea. Appellant pled no contest to count two, admitted the enhancement, and admitted violating his probation in two unrelated actions.
At the preliminary hearing, L.S. testified that on February 18, 2008, her son called to tell her that appellant had flipped out and left the house. L.S. drove by her home, but did not stop. L.S. went to appellant’s mother’s home to pick him up. L.S. took appellant on a drive down the highway to calm him down. Because he was cold, L.S. tossed appellant a sweatshirt. Appellant threw the sweatshirt in front of L.S. so she could not see the road. Appellant became upset with L.S. for wearing sunglasses with Playboy bunnies so he grabbed them and threw them out the window.
In case Nos. 178607 and 156081, appellant was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and was placed on probation in both cases.
On July 9, 2008, the trial court sentenced appellant to prison for three years on count two and to a consecutive term of four years for the enhancement for a total term of seven years. The court granted applicable custody credits and imposed a restitution fine. In case Nos. 178607 and 156081, the court revoked appellant’s probation and imposed concurrent sentences of two years in each case. Appellant failed to obtain a certificate of probable cause.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter dated November 4, 2008, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
Appellant became “crazier” and socked L.S. four times in the face while she was driving. He also jerked the steering wheel, turning the vehicle from the slow lane to the fast lane on the highway. L.S. pulled onto the shoulder of the road and stopped the car. Appellant grabbed her hair, pulled her down between the two seats, and latched onto her neck, biting her very hard.
When L.S. exited the vehicle to run toward a gas station, appellant grabbed her and threw her to the ground and started punching her in the face and head. Appellant then pulled L.S. by her hair onto the highway in the path of traffic. Appellant told L.S. that she “had to die.” L.S. thought she would get hit by traffic. She held her hands up to stop traffic. An 18-wheeler truck nearly hit her but managed to stop. Appellant told the truck driver to run her over. L.S. escaped when a driver opened his vehicle and drove her away. L.S. suffered lumps and bruises all over her body, two black eyes, and bruising over the entire bridge of her nose and the left side of her face.