Opinion
A130919
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOHN SMITH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR208348)
Defendant Thomas John Smith appeals a judgment entered upon his plea of no contest to making criminal threats. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant was charged with first degree burglary, with a person present (Pen. Code, § 459) (count one); assault on David Gaul by means likely to produce great bodily injury (§ 245, subd. (a)(1)) (count two); making criminal threats to David Gaul (§ 422) (count three); and assault and battery on Deborah David (§ 242) (count four).
All statutory references are to the Penal Code.
Evidence at the preliminary hearing shows that David Gaul managed a clean and sober independent living facility. Defendant was one of three tenants who lived in Gaul's unit.
On August 11, 2010, defendant came home and said he'd had a bad day. He later began screaming at another resident. Gaul could smell alcohol on his breath. Gaul told defendant he would give him a 30-day notice if he continued to bother the other resident. He went to his bedroom and typed up a notice, planning to give it to defendant the next day. Defendant yelled at Gaul through the closed bedroom door, then came into the room, saying "Well, Dave, I'm in your room. What are you gonna do about it?" Gaul pushed him out of the room, closed the door, and locked it. Defendant began banging against the door, trying to break it down. Gaul unlocked the door, and defendant came in the room, swinging his fists at Gaul. Gaul discharged a fire extinguisher at defendant, and defendant began hitting Gaul, hitting his head approximately 20 times. Gaul fell, and defendant kicked him in the head. Gaul got back to his feet, and defendant continued punching him, saying Gaul had "hit [him] with some iron." Outside the bedroom, defendant continued to hit Gaul and yell.
A neighbor, Deborah David, came out of her apartment and tried to get defendant to stop hitting Gaul. Defendant grabbed her glasses and threw them over a fence, then punched her and grabbed her hair, refusing to let go. When defendant stopped hitting David, Gaul went back to his bedroom, bleeding from his nose and face. Defendant came into Gaul's room and said, "If you hit me with a piece of iron again, I'll come back and I'll kill you." He said at least three times that he would kill Gaul.
After waiving his constitutional rights and being advised of the strike implications of his plea, defendant pled no contest to making criminal threats. (§ 422.) The remaining counts were dismissed.
In accordance with the plea bargain, the probation department considered whether defendant, who had a history of mental health and substance abuse issues, was appropriate for placement in a residential substance abuse treatment program. The probation department recommended against such placement.
The trial court denied probation and sentenced defendant to the midterm of two years.
Defendant has filed a supplemental brief and a "Supplemental Document." His primary contention is that he was entitled to additional presentence custody credits pursuant to section 4019. Effective January 25, 2010, the Legislature passed Senate Bill No. 18, which amended section 4019 to increase the number of presentence credits available to defendants, with certain exceptions. Excluded from that increase were defendants who were committed for a serious felony as defined in section 1192.7. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, pp. 5270-5271.) Those serious felonies include making criminal threats in violation of section 422, the basis for defendant's conviction and prison commitment in this case. (§ 1192.7, subd. (c)(38).) Defendant was therefore ineligible for the increased credits.
In his supplemental briefing, defendant also questions whether the offense in question qualifies as a strike. To the extent this challenge is to the terms of his plea agreement, we note that defendant was advised before entering his plea of its strike consequences. He has not obtained a certificate of probable cause that would allow him to challenge the validity of his plea. (See § 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) To the extent defendant's challenge is to his sentence in the present case, it has no merit. He was sentenced to the midterm for his offense, and his sentence was not enhanced under the Three Strikes law. In any case, a violation of section 422 qualifies as a prior conviction of a felony for purposes of section 1170.12. (§§ 1170.12, subd. (b)(1) & 1192.7, subd. (c)(38).)
There are no meritorious issues to be argued.
DISPOSITION
The judgment is affirmed.
RIVERA, J. We concur: RUVOLO, P. J. REARDON, J.