Opinion
F072193
05-11-2017
THE PEOPLE, Plaintiff and Respondent, v. HENRY ANTHONY TURPIN, JR., Defendant and Appellant.
Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F13910653)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. David Andrew Gottlieb, Judge. Gillian Black, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Franson, J.
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Appellant Henry Anthony Turpin, Jr. pled no contest to inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and was placed on probation. After Turpin admitted violating his probation in that matter, the court sentenced him to prison. Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
Turpin and the confidential victim (CV) lived together on and off for two years. On October 21, 2013, while they were living apart, Turpin called the CV and asked for a ride to get his car out of impound. When the CV went to Turpin's house, Turpin prevented her from leaving and told her he would not let her go until she promised to move back in with him. When she told him that she would not, Turpin grabbed her by her face and right arm and punched her in the stomach, leaving a red mark under her eye, a bruise on her arm and another on her stomach. Turpin also threw the CV's phone against a wall, causing it to break into several pieces. Turpin eventually let the CV leave after she agreed to move back in with him.
On November 7, 2013, the Fresno County District Attorney filed a complaint charging Turpin with infliction of corporal injury on a cohabitant (count 1), false imprisonment by violence (count 2/§ 236), damaging a wireless communication device (count 3/§ 591.5), and petty theft (count 4/§ 484, subd. (a)).
On December 9, 2013, Turpin pled no contest to count 1 in exchange for the dismissal of the remaining counts and two unrelated cases, and an agreement that his offense would be reduced to a misdemeanor upon Turpin's successful completion of the batterer's intervention program.
On January 8, 2014, the court suspended imposition of judgment and placed Turpin on probation for three years.
On March 10, 2014, the court denied Turpin's request for a certificate of probable cause.
On March 14, 2014, Turpin's appeal was deemed inoperative pursuant to California Rules of Court, rule 8.304(b)(1) and (2).
On July 13, 2015, the probation department filed a probation hearing report alleging Turpin violated his probation by failing to appear in court on March 26, 2014, failing to enroll in the substance abuse treatment program, failing six alcohol/drug tests, failing to refrain from using drugs, and failing to obey all laws.
On July 27, 2015, Turpin admitted that he violated his probation by failing to appear in court and failing to communicate with his probation officer. The court then sentenced Turpin to a mitigated prison term of two years.
On August 25, 2015, Turpin filed a timely appeal. On that date, the trial court granted Turpin's request for a certificate of probable cause.
Turpin's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) Turpin has not responded to this court's invitation to submit additional briefing.
Following an independent review of the record, we find no reasonably arguable factual or legal issues exist.
DISPOSITION
Turpin did not appear to appear to meet any of the conditions in Penal Code section 1170, subdivision (h) that would have allowed the court to impose a prison term. On January 30, 2017, we issued a letter to the parties requesting briefing on whether the court imposed an unauthorized sentence when it sentenced Turpin to prison. However, on closer examination after the parties responded, we determined that this "issue" was not reasonably arguable because section 273.5 provides for imprisonment in the state prison (cf. People v. Butcher (2016) 247 Cal.App.4th 310, 318-319) and that the case remains subject to Wende review pursuant to People v. Wende (1979) 25 Cal.3d 436. --------