Opinion
A132807
12-27-2011
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY BRYAN PADGETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR-565498)
After pleading no contest to two charges of child abuse, defendant Timothy Padgett was granted probation and ordered to serve one year in county jail. He appeals, and his appointed counsel has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues that require briefing, and affirm.
FACTUAL BACKGROUND
Because defendant pleaded no contest before trial, we derive the factual background from the preliminary hearing transcript and the felony presentence report.
In July 2009, one-year-old Jane Doe was living in Santa Rosa with her mother (Stacey), her stepfather (defendant), and three stepsiblings. During a three-week period in July, she was injured three times, twice severely enough to require a hospital visit. In all three instances she was alone with defendant when injuries occurred or were discovered.
According to defendant, the first injury occurred when he and Jane Doe were playing on a bed with a remote control. An overhead light broke, and when defendant tried to shield Jane Doe from the glass, he inadvertently knocked them both off the bed. Jane Doe hit the nightstand on her way down, causing a bump on her head and bruising to the inside of her ear.
A week later, Stacey was taking a shower when defendant brought Jane Doe into the bathroom, saying the baby was injured and needed to go to the hospital. Stacey could see that the bottom of Jane Doe's right nostril was torn away from her face. Defendant claimed that he did not see what happened but that he found Jane Doe on the floor in her bedroom and assumed she had fallen off the bed where one of her stepsiblings had placed her. Jane Doe was taken to the hospital, where the tear was repaired with a medical adhesive.
On July 19, 2009, approximately one week after the second incident, Jane Doe suffered a third injury. That evening, Stacey put Jane Doe down in her crib with a bottle and went downstairs. Stacey and defendant could hear her crying upstairs and then heard a loud "thump," which they assumed was her bottle hitting the floor. Both Stacey and defendant went upstairs, Stacey peeking into the room while defendant went in, picked up the bottle, and gave it back to Jane Doe. Both returned downstairs, Stacey going into the kitchen and defendant settling down in the living room to watch television while folding laundry. A little while later, defendant carried the laundry upstairs, and then called to Stacey, saying that Jane Doe was hurt. Stacey found her in her crib, which now had a broken slat, with a bruise and bump on her forehead and puncture wounds on her foot. The tear on her nose had also reopened.
Stacey took Jane Doe to the hospital, where it was noticed that she also had dried blood behind one of her ears and a red mark on her back. Because Jane Doe had multiple injuries on her body and had been treated at the hospital or by a doctor on two previous occasions over the preceding two weeks, hospital personnel filed a report of possible child abuse. When interviewed at the hospital, Stacey told the police that she had been home alone with Jane Doe when the third incident happened, not wanting to admit that defendant was there because he had a warrant out for his arrest.
When Stacey and Jane Doe returned home from the hospital, Stacey discovered that the crib now had three broken slats. Defendant later told her that he had pulled out the other two slats to make the crib look worse so they could pursue a claim against the crib manufacturer for selling a defective crib.
Detective Christopher Lomanto with the Sonoma County Sheriff's Department was assigned to investigate the suspected abuse. He went to the residence in the early morning hours of July 20, approximately six hours after the third incident occurred, and spoke with Stacey. She told the detective more than one version of what occurred the previous evening. Detective Lomanto also interviewed defendant that day, and when asked where he was when Jane Doe was injured, defendant gave at least three different responses, eventually admitting that he was at home and was alone with Jane Doe when her injuries were discovered.
PROCEDURAL BACKGROUND
On October 15, 2010, defendant was charged by information with one felony count of inflicting cruel or inhuman corporal punishment or injury, resulting in a traumatic condition, upon a child (count I; Pen. Code, § 273d, subd. (a)), and one misdemeanor count of child endangerment under conditions other than those likely to produce great bodily injury (count II; Pen. Code, § 273a, subd. (b)). As to count I, it was specially alleged that defendant inflicted great bodily injury upon the victim, who was under the age of five, within the meaning of Penal Code section 12022.7, subdivision (d).
On March 28, 2011, the date set for jury selection, the prosecutor moved to dismiss the great bodily injury enhancement to count I. There followed an in-chambers discussion, after which defendant pleaded no contest to counts I and II. The court indicated that "it look[ed] like a probation case," and represented that it was open to "jail alternatives and probation, something less than prison . . . ." Defendant signed a waiver-of-constitutional-rights form, on which he acknowledged six years in state prison as the maximum possible sentence and initialed his understanding that "although the Court has indicated a sentence, there is no agreement with the District Attorney's Office and the court will not decide what my sentence will be until it has read and considered a report from the probation office." Next to this standard form language, a handwritten notation stated, "probation, possible jail sentence up to 1 [year], but court is open to all jail alternatives and programs." The court then referred the matter to probation for a presentencing report and continued the matter for sentencing.
The court also dismissed with a Harvey waiver (see People v. Harvey (1979) 25 Cal.3d 754, 758) the charges in a second felony case that was trailing this case.
On May 2, 2011, the probation department submitted a felony presentence report in which it noted that defendant was ineligible for a grant of probation and that "there are no factors that would suggest this to be an unusual case where probation would be granted." Instead, it recommended that defendant be sentenced to state prison for the aggravated term of six years.
On July 19, 2011, the court sentenced defendant to the midterm of four years in state prison, but suspended the sentence and placed defendant on probation. As a term of probation, defendant was ordered to serve one year in county jail.
On July 29, 2011, defendant filed a notice of appeal.
DISCUSSION
The scope of reviewable issues on appeal after a plea of no contest is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)
In his notice of appeal, defendant requested a certificate of probable cause permitting him to challenge the validity of his no contest plea. He based his request on the following: "At entry of plea, court had indicated, in camera, that it would consider a probationary grant of no jail time and/or jail alternatives, given the moderate degree of injury to the child, versus other child abuse cases with which the court was familiar. The Probation Officer's Felony Presentence Report over-stated the child's injuries and recommended an aggravated prison term. . . . [Defendant] was the sole proprietor and sole income provider for his family as the owner of a meat distribution business . . . . On the day of sentence the court honored its indication of no initial state prison, but [defendant] anticipated that the court was going to honor the 'no jail' and/or jail alternatives sentence as well so [defendant] could continue to run hi[s] business and participate in programs of counseling, therapy or classes as recommended by probation. [Defendant] complains that absent that favorable condition of probation, he would have gone to trial."
We see no indication in the record that the request for a certificate of probable cause was granted.
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Defendant's complaint lacks merit because it was made clear to him that the court had not decided on his sentence and that jail time was a possibility. For example, during the hearing in which defendant entered his no-contest plea, the court asked, "So you understand I haven't decided exactly what your sentence will be until after we've gone through that entire process?" Defendant responded, "Yes."
On his change-of-plea form, defendant initialed his understanding that "although the Court has indicated a sentence, there is no agreement with the District Attorney's Office and the court will not decide what my sentence will be until it has read and considered a report from the probation office." Next to this standard form language, a handwritten notation explained, "probation, possible jail sentence up to 1 [year], but court is open to all jail alternatives and programs."
Finally, at the sentencing hearing, responding to an assertion made by the prosecutor that defendant pleaded guilty, defense counsel observed, "He did not plead guilty. He pled no contest. And again, the situation is what it is. And [defendant] entered the plea of no contest, and he is prepared to accept what the Court imposes."
It is clear from the foregoing that defendant was fully advised that the court had not committed to a sentence and that a one-year jail term remainder a viable option. To now claim that he would not have entered the no-contest pleas if he had known he would receive jail time instead of a jail alternative is contrary to the record. Moreover, his assertion that the court failed to "honor" its agreement is simply disingenuous.
We have further reviewed the record and have found no arguable issues that require briefing.
DISPOSITION
The judgment of conviction is affirmed.
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Richman, J.
We concur:
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Kline, P.J.
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Haerle, J.