Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County, No. CRF32552, William G. Polley, Judge.
Retired Judge of the Tuolumne S.Ct. assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
PROCEEDINGS
Appellant, Dane L. Tonies, was charged in an information filed on June 4, 2010, with feloniously making criminal threats (Pen. Code, § 422, count one) and felony possession of a firearm after acquiring a qualifying prior conviction (§ 12021.1, subd. (a), count two). The complaint alleged two prior serious felony convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)) and two prior prison term enhancements.
Unless otherwise designated, all statutory references are to the Penal Code.
On August 30, 2010, appellant entered into a plea agreement in which he would admit count one, one strike allegation, and the two prior prison term enhancements. Appellant’s prison term would be for six years. Appellant was advised of the consequences of his plea. Appellant executed a felony advisement and waiver of rights form acknowledging and waiving his constitutional rights pursuant to Boykin/Tahl. The parties stipulated to a factual basis for the change of plea. Appellant pled guilty to count one, admitted the strike allegation, and admitted the two prior prison term enhancements. The remaining allegations were dismissed.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
There was no preliminary hearing. The prosecutor stated the factual basis for the plea was that on June 2, 2010, appellant threatened to kill or to cause great bodily injury to Carmen Harwell at her residence in Tuolumne County and she was in fear for her life, her safety, or the safety of her immediate family during the threat.
On September 27, 2010, the court sentenced appellant to a prison term of two years, doubled to four years pursuant to the three strikes law, plus consecutive one-year sentences for each prior prison term enhancement. Appellant’s total prison term is six years. Appellant received total custody credits of 175 days. Appellant filed a timely notice of appeal but the court denied his request for a certificate of probable cause.
Appellant had two prior serious felony convictions. His current conviction is for making a criminal threat, a serious felony under section 1192.7, subdivision (c)(38). Appellant is not entitled to extra custody credits pursuant to section 4019 even if they are found to apply retroactively (§ 4019, subds. (b)(1) & (c)(1)).
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on January 4, 2011, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.