Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR525386
Margulies, J.
Defendant Paul Lamont Smith, Jr., appeals from a judgment following his plea of no contest to felony assault with force likely to produce great bodily injury, with an enhancement pursuant to Penal Code section 12022.7. His counsel has filed a brief identifying no specific issues and asking this court to conduct an independent review of the record to determine whether there are any issues that could, if resolved in defendant’s favor, result in reversal or modification of the judgment. (People v. Kelly (2005) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel declares he notified defendant that he may file a supplemental brief, and defendant has filed one.
Based upon our independent review of the record, and of the issues identified in defendant’s supplemental brief, we conclude no arguable issues are presented for review and affirm the judgment. (See People v. Kelly, supra, 40 Cal.4th 106, 124 [“in a Wende appeal, the Court of Appeal must prepare a written opinion that describes the contentions personally raised by the defendant and the reasons those contentions fail”].)
The stipulated factual basis for the plea was the police report, which is summarized in the probation report. The police report itself was not included in the record on appeal.
A police officer interviewed the victim, Justin White, at the hospital where he was being treated for his injuries. White reported that he and defendant had attended a party the night before. Defendant became angry when White made a comment defendant perceived to be a racial slur. According to White, defendant hit him in the mouth with a pistol, causing White to fall backward into a piano. White stated defendant fired the gun twice as he exited the residence, and asked: “ Should I finish him off?” or, “Should I take care of him?” White acknowledged that they both were intoxicated. He woke up the next morning and sought treatment for his injuries. The officer observed that White was missing a tooth, his bottom row of teeth was bloodied, and he had blood coming from his ear. White explained that the injury to his ear occurred when he fell into the piano. White also suffered a broken jaw.
S. B., who lived in the house where the party took place, told the officer she was asleep when the fight occurred and was awakened by the sound of gunfire. She found White bleeding from the mouth. Other party guests told S. B. that defendant had hit White in the mouth with a pistol, and fired shots as he left. S. B. called defendant to complain that he had fired a gun at her residence, and they argued. Approximately 40 minutes after the call ended, defendant returned to her residence and the argument resumed. Defendant shoved her against the wall and grabbed her throat. He lifted her onto her toes, and for a few minutes she could not breath or speak while he choked her. He eventually released her. She told the officer she did not see defendant with a gun that night, but had seen him with a gun in the past.
When he was arrested, defendant initially denied that he attended the party, but eventually admitted he was present and had consumed alcohol. He could not recall striking the victim with a gun or firing a gun. He also could not recall choking S. B. The police searched his residence, but did not locate a gun.
The district attorney filed a felony complaint. The complaint charged defendant, in count one, with assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) on Justin White, and alleged enhancements pursuant to sections 12022.5, subdivision (a), and 12022.7, subdivision (a). Count two charged defendant with assault by means likely to cause great bodily injury (§ 245, subd. (a)(1)) against S. B. The complaint also alleged defendant had suffered two prior convictions within the meaning of section 667.5.
Further statutory references are to the Penal Code.
Pursuant to a negotiated disposition, the complaint was amended to allege a third felony count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), and an enhancement allegation pursuant to section 12022.7. In exchange for his plea of no contest to count three and the related enhancement, it was agreed that counts one and two would be dismissed, with no Harvey waiver. The plea was open to the court. The plea form advised defendant the maximum sentence was seven years, and that the court indicated the maximum it would impose was six years. Defendant signed and initialed the form for a change of plea, acknowledging he had been advised of all the consequences of the plea, including a “presumptive” prison sentence, and of his constitutional rights, and that he freely and voluntarily waived those rights.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
At the change of plea hearing defendant stipulated to a factual basis for the plea based upon the police reports. The court found defendant understood the nature of the charges and the consequences of the plea. It further found defendant’s waiver of his constitutional rights and his plea were “knowing, intelligent and voluntary.”
The probation report summarized defendant’s extensive criminal history, including a 1999 conviction in Marin County for brandishing a gun. In his probation interview defendant took responsibility for White’s injuries, but denied that he had a firearm in his possession that night, or that he had ever owned a firearm. Defendant also stated he was unable to recall the details of the assault on White, due to his level of intoxication.
The probation report stated defendant was eligible for probation only upon a finding of unusual circumstances because he had willfully inflicted great bodily injury (§ 1203, subd. (e)(3)), had previously been convicted of more than two felonies (§ 1203, subd. (e)(4)), and had been armed with a gun at the time of his arrest for the offenses that resulted in the 1999 Marin County conviction (§ 1203, subd. (e)(6)(A)). The report did not identify any unusual circumstances. It listed defendant’s possession of a firearm when he committed the assault as a factor weighing against granting probation. Favorable factors included defendant’s steady employment, willingness to participate in an alcohol treatment program, and showing of some remorse.
On July 29, 2008, the original date set for sentencing, defense counsel objected to the probation report’s reference to the fact that defendant had a gun when he committed the assault on White. He argued the court could not consider that fact because count one and the related firearm enhancement had been dismissed without a Harvey waiver. Defense counsel also urged the court to grant probation or consider alternatives to prison such as a residential treatment program for alcohol abuse. The court stated it was not comfortable granting probation in light of the violent nature of the crime. Nonetheless, it accepted defense counsel’s suggestion to continue the hearing to allow defendant time to apply to several programs for alcohol treatment. The court informed defendant he had a right to be sentenced that day, and defendant agreed to waive time.
At the continued sentencing hearing, defense counsel informed the court defendant had been accepted into the Jericho Project, and urged the court to consider this alternative to prison. The court stated it had “considered the Jericho program. Because of the violence of this offense and the use of a gun, I do not feel it’s appropriate here.” Defense counsel argued there were no witnesses other than White who saw defendant with a gun, and no gun was ever found.
The court sentenced defendant to the midterm of three years for the assault and a consecutive term of three years for the great bodily injury enhancement. It ordered defendant to pay victim restitution pursuant to section 1202.4, subdivision (f) and set a hearing on the amount. It also imposed a $200 fine pursuant to section 1202.4, and a suspended $200 parole revocation fine.
II. ANALYSIS
We have independently reviewed the record and considered the issues raised in defendant’s supplemental brief. By pleading guilty defendant admitted the sufficiency of the evidence, and may not raise any issue that challenges his guilt. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Since he did not seek a certificate of probable cause, he may not challenge the validity of the plea. The only issues he can raise on appeal are issues relating to denial of a motion to suppress or issues arising after the plea was entered.
We have reviewed the transcript of the change of plea hearing and the change of plea form, and conclude defendant was fully advised by the court and counsel of the constitutional rights he would be waiving and the direct consequences of his plea. Defendant expressly waived his constitutional rights and knowingly and voluntarily pleaded no contest.
We find no sentencing errors. Pursuant to section 1203, subdivision (e), defendant could not receive probation absent a finding of unusual circumstances, and the court found none. It was agreed that defendant could receive up to seven years in prison, although the court indicated that it would likely sentence him to no more than six years. The prison sentence of the midterm of three years for the assault, and a consecutive three year term for the enhancement, was consistent with the terms of the plea. The restitution and other fines were also appropriate.
In his supplemental brief, defendant raises several issues related to sentencing. We have considered these issues and find them without merit for the following reasons.
Defendant asserts that, contrary to Justin White’s statement, three other witnesses said he did not have a gun. Defendant, however, stipulated to the police report as the factual basis of the plea. He further contends the court should not have considered his use of a gun to hit Justin White because count one, alleging assault on Justin White with a semi-automatic firearm and the related firearm enhancement, was dismissed with no Harvey waiver. In Harvey, supra, 25 Cal.3d 754, the court specified that its decision did not preclude the sentencing court from taking into account facts underlying charges dismissed pursuant to a plea bargain that are transactionally related to the offense to which defendant pleaded guilty. (Id. at p. 758.) A transactional relationship exists between the dismissed and admitted charges if there are “facts from which it could at least be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count.” (People v. Beagle (2004) 125 Cal.App.4th 415, 421.) The facts of the dismissed count one and the admitted count three were transactionally related because both were based upon the act of hitting Justin White in the face, and the police report, which was the stipulated factual basis for plea, included White’s statement that defendant hit him in the face with a pistol. (See, e.g., People v. Cortez (1980) 103 Cal.App.3d 491, 496-497 [court did not err in considering facts underlying dismissed allegation that defendant was armed with a deadly weapon in sentencing defendant on admitted count of robbery, because the deadly weapon was used in the robbery]; People v. Gaskill (1980) 110 Cal.App.3d 1, 4 [court did not err by considering facts underlying dismissed assault with a deadly weapon in sentencing defendant to admitted count of unlawful possession of gun, because the assault consisted of brandishing the gun].)
Defendant also objects that the court did not sentence him at the original sentencing hearing. He is barred from challenging the continuance of sentencing because he waived time and his counsel agreed to the continuance.
III. CONCLUSION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.