Opinion
NOT TO BE PUBLISHED
Marin County, Super. Ct. No. SC152924A
Marchiano, P.J.
Defendant Paul Erias Stelly, Sr. appeals from a judgment and sentence of four years eight months to state prison after he pleaded guilty to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), inflicting corporal injury on a spouse (§ 273.5, subd. (a)), and attempting to dissuade a witness (§ 136.1, subd. (a)(2)). He filed a timely appeal. Defendant’s counsel filed an opening brief that raises no issues and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel advised defendant that he may file a supplemental brief. Defendant filed his supplemental brief on March 7, 2008 that raises issues about consecutive sentencing. We have independently reviewed the record and find there are no issues that require argument or further briefing.
All statutory references are to the Penal Code.
Background
The preliminary hearing transcript contains the testimony of a San Rafael police officer who, on March 22, 2007, responded to an anonymous neighbor’s call about an altercation at the defendant’s apartment. Defendant admitted to the officer that he had an argument with his wife, but denied any fighting. Defendant’s wife appeared very scared and intoxicated. She said that defendant inflicted a visible bruise on her right arm several days before. She revealed to a female officer that appellant had choked her so that she was unable to breathe. Defendant was then arrested.
At the preliminary hearing, defendant’s wife testified that the bruise was not caused by her husband, but by a fall while fishing a few days before. She stated her husband would never do anything to hurt her. She said she did not remember most of her statements to the officers.
Two recorded collect phone calls from the Marin County Jail to Mrs. Stelly on April 9, 2007, revealed the defendant ordering her to stay in her “vacation spot” for at least three weeks, noting the district attorney had been unable to serve her. Defendant instructed his wife on how to hide out and later followed up by phone to make sure she was following his orders. He then forcefully told her to get out of where she was because she would be found.
Procedural Developments
The information charged defendant with four counts: violation of sections 245, subdivision (a)(1), 273.5, subdivision (a), 136.1, subdivision (a), and 136.1 subdivision (a)(2), four probation ineligibility allegations under section 1203, subdivision (e)(4) based on four prior felony convictions, and two serious or violent felony convictions under sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The court later granted defendant’s motion to dismiss count three, violation of section 136.1, subdivision (a).
A combined motion to dismiss under section 995, and a motion to suppress under section 1538.5 were denied. The court struck the two strike priors. Defendant executed a change of plea form on July 27, 2007, pleaded guilty to the remaining counts and admitted the four prior convictions under section 1203, subdivision (e)(4) with the understanding that he could be sentenced up to five years eight months to state prison, or if unusual circumstances were found, to probation and up to three years in the county jail. The court reviewed the signed form with defendant who said he read and understood it, obtained a waiver of his constitutional rights on the record, and assured a knowing, voluntary, and intelligent change of plea.
On September 12, 2007, after reviewing sentencing statements from counsel, listening to argument, reviewing the probation report, and mindful of the defendant’s substantial criminal history, the court did not find any unusual circumstances, denied probation, imposed the middle term of three years on count one for violation of section 245, subdivision (a)(1) and appropriate consecutive sentences on counts two and four for crimes occurring on separate occasions, for an aggregate term of four years eight months. The court ordered payment of restitution fines and properly calculated custody credits.
The court correctly imposed one-third of the middle term for the consecutive sentences.
Discussion
Counsel represented defendant at all stages of the proceedings. There were no errors in the proceedings or in the sentence.
The judgment is affirmed.
We concur: Stein, J., Swager, J.