Opinion
B202537
4-22-2008
THE PEOPLE, Plaintiff and Respondent, v. RAMON ISIDRO REYMUNDO, Defendant and Appellant.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
About two hours after they had argued, Ramon Isidro Reymundo retrieved a kitchen knife and stabbed his girlfriend, Vicki D. Jenkins, in the abdomen, lacerating her liver. Reymundo was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 1), corporal injury to a cohabitant (§ 273.5, subd. (a)) (count 2) and attempted murder (§§ 187, subd. (a), 664) (count 3). The information specially alleged as to counts 1 and 2 that Reymundo had personally used a deadly weapon (knife) (§ 12022, subd. (b)(1)) and had personally inflicted great bodily injury on Jenkins in committing the offenses under circumstances involving domestic violence (§ 12022.7, subd. (e)).
Statutory references are to the Penal Code.
In March 2007 Reymundos motion to dismiss on the grounds (a) he had been improperly denied certain discovery and (b) the police had failed to preserve certain exculpatory evidence necessary to his defense (California v. Trombetta (1984) 467 U.S. 479, 485-488 [104 S.Ct. 2528, 81 L.Ed.2d 413]) was heard and taken under submission by the trial court.
On June 1, 2007 a plea agreement was reached in which Reymundo was to plead no contest to aggravated assault and to admit the great bodily injury enhancement. In return, the trial court was to refer Reymundo to the California Department of Corrections and Rehabilitation for a section 1203.03 diagnostic study with the agreement the sentence imposed could range from probation to eight years in state prison (the aggregated four-year upper term on the substantive offense and the four-year middle term on the enhancement). Reymundo was assisted at the plea hearing by counsel and signed a "guilty plea form" indicating his maximum possible sentence was eight years for violating sections 245, subdivision (a)(1), and 12022.7, subdivision (e).
At the time Reymundo entered his plea, he was advised of his constitutional rights and the nature and consequences of his plea both orally and in a written form, which Reymundo signed. The prosecutor reiterated Reymundo could receive probation or be committed to state prison for a minimum of five years up to a maximum of eight years under the plea agreement. Reymundo stated he understood and accepted the terms of the bargain.
Thereafter, Reymundo pleaded no contest to count 1 and admitted the great bodily injury enhancement. Defense counsel joined in the waivers of Reymundos constitutional rights and concurred in the plea and admission. The trial court expressly found Reymundos waivers, plea and admission were voluntary, knowing and intelligent. The court found, and defense counsel stipulated to, a factual basis for Reymundos plea and admission. The court continued the matter for sentencing until completion of the diagnostic study.
An alleged probation violation in Los Angeles Superior Court case No. YA053426 (sexual battery by restraint) was also continued to the sentencing hearing.
At the sentencing hearing the trial court stated it had read and considered the diagnostic study and invited argument by counsel. Defense counsel urged the court to grant probation or, at the very most, to impose the minimum five-year, aggregate state prison term. The prosecutor argued Reymundo should be sentenced to seven years in state prison. The court then heard statements from Reymundo and the victim Jenkins.
Apparently the diagnostic study concluded Reymundo was not a suitable candidate for probation.
The trial court declined to grant Reymundo probation, after noting his criminal record included convictions of violent crimes (sexual battery by restraint (2002) and brandishing a weapon (1994)) and numerous alcohol-related offenses (at least four driving under the influence convictions), as well as purported sexual assaults as to which the victims refused to cooperate or could not be located and his demonstrated lack of remorse during the diagnostic study.
The trial court concluded a six-year sentence (the three-year middle term for the aggravated assault plus the three-year lower term for the great bodily enhancement) was appropriate under the circumstances. Accordingly, the court sentenced Reymundo to an aggregate state prison term of six years. Reymundo received presentence custody credit of 805 days (700 actual days and 105 days of conduct credit). The court ordered Reymundo to pay a $20 security assessment and a $200 restitution fine. A parole revocation fine was imposed and suspended pursuant to section 1202.45. The remaining counts and special allegations were dismissed on the prosecutors motion.
The trial court found Reymundo in violation of probation in Los Angeles Superior Court case No. YA053426 and revoked and terminated probation in that case.
Reymundo timely appealed "from the sentence" and did not obtain a certificate of probable cause. We appointed counsel to represent him on appeal.
After examination of the record counsel filed an "Opening Brief" in which no issues were raised. On February 28, 2008 we advised Reymundo he had 30 days within which to personally submit any contentions or issues he wished us to consider. We have received no response to date.
We have examined the entire record and are satisfied Reymundos attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.) The trial courts statements at the sentencing hearing establish it considered all the information presented to it, gave considerable thought to its options and acted well within its discretion in sentencing Reymundo to a six-year state prison term, less than the maximum sentence to which Reymundo had agreed when he entered his plea.
The judgment is affirmed.
We concur:
WOODS, J.
ZELON, J.