Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR090406
JENKINS, J.
Defendant Gary William Van Dalsem appeals from a final judgment following his no contest plea, placement on probation, subsequent revocation of probation and imposition of a sentence of three years in state prison with credit for time served. Defendant’s appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Defendant was informed of his right to file a supplemental brief and did not file such a brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) Having independently reviewed the record, we conclude there are no issues that require further briefing, and therefore affirm the judgment.
Factual and Procedural Background
In January 2009, defendant used his key to enter the home of his estranged wife, in violation of a restraining order, grabbed her by the arm and threw her down, hit her four or five times about the face with a closed fist as she attempted to flee, stomped on her phone and tore the cordless phone base from the wall. Defendant fled the scene before the police arrived. Police noted that the victim had visible injuries on her right arm.
Based on this incident, the Humboldt County District Attorney (DA) filed an information in February 2009, accusing defendant in count one of attempting to dissuade a victim from reporting a crime, a felony in violation of Penal Code section 136.1, subdivision (b)(1); in count two of misdemeanor battery, in violation of section 243, subdivision (e)(1); in count three of unauthorized entry of a dwelling house, a misdemeanor in violation of 602.5, subdivision (b); in count four of inflicting corporal injury upon a spouse or cohabitant, a misdemeanor in violation of section 273.5, subdivision (a); and, in count five with violating a domestic relations court order, a misdemeanor in violation of section 273.6, subdivision (a). Based on these charges, the DA also filed two petitions to revoke probation in two other misdemeanor cases.
Further statutory references are to the Penal Code unless otherwise noted.
At a hearing in March 2009, defendant’s counsel declared a doubt as to defendant’s competency to stand trial. The trial court suspended criminal proceedings pursuant to section 1368 and ordered that defendant undergo a mental evaluation. After considering reports from two court-appointed mental health experts, the court entered an order on April 29, 2009, finding defendant mentally incompetent. Also, the court ordered that criminal proceedings remain suspended and that defendant be evaluated pursuant to section 1370, subdivision (a)(2), for restoration to competency.
At a hearing held in closed session on June 16, 2009, pursuant to section 1370.1, the trial court received testimony from Thomas Meyer, defendant’s examining psychiatrist. Meyer testified that defendant’s mental problems compromised his capacity to make decisions regarding psychotropic medication but did not require medical treatment with antipsychotic medication. Thereafter, the court found that as a result of his medical condition, defendant represented a danger of inflicting substantial physical harm on others. On June 30, 2009, the court entered an order committing defendant to Napa State Hospital until he regained competency and authorizing the treating facility to administer psychotropic medications on an involuntary basis, pursuant to section 1370, subdivision (a) (1)(B)(iii).
Criminal proceedings were reinstated on December 1, 2009, based upon a certificate of mental competency received by the court on November 17, 2009. On January 11, 2010, defendant appeared with counsel and announced he wished to enter a plea of no contest to count one of the information, dissuading a victim, in violation of section 136.1, subdivision (b)(1), upon the condition that he be placed on supervised probation and not be sentenced to state prison. Before accepting defendant’s plea, the court fully advised defendant of his constitutional rights and defendant knowingly waived those rights. Specifically, the court advised defendant that if he violated probation he could be sent to state prison for the maximum term of three years. Thereafter, defendant pleaded no contest to count one as alleged in the amended information, and also admitted that he violated the terms of his probation in two misdemeanor cases of spousal abuse and driving under the influence. The court referred the matter to probation for a report and set it for sentencing.
At a sentencing hearing on February 9, 2010, the court adopted the recommendation in the probation report, suspended imposition of the sentence, and placed defendant on three years of supervised probation. The court also reinstated defendant’s probation on the two misdemeanor matters.
On June 17, 2010, the probation officer filed a notice of probation violation. The notice alleged defendant violated the conditions of his probation by committing an assault and failing to attend a batterer’s intervention program.
On July 2, 2010, criminal proceedings were suspended pursuant to section 1368, and the matter continued for preparation of a competency report. At a hearing on July 15, 2010, the court, based upon a psychologist’s evaluations conducted that morning and the day before, found defendant was presently competent and reinstated criminal proceedings. Against the advice of counsel, and after the court advised defendant of his constitutional rights and defendant acknowledged he understood and waived those rights, defendant admitted he violated the conditions of his probation in this case and the two other misdemeanor cases. Also against advice of counsel, defendant stated he wished to waive his right to have the matter referred to probation for preparation of a sentencing report and recommendations, and stated he wanted to be sentenced immediately to the maximum term. Thereafter, the court sentenced defendant to the upper term of three years, with credit for time served totaling 701 days (292 days presentence custody credit and 292 days conduct credit for time in county jail, plus 117 days for time spent in hospital). The abstract of judgment filed on July 22, 2010, accurately reflects the oral pronouncement of judgment. Defendant filed a timely notice of appeal on September 3, 2010.
Discussion
As noted above, appointed appellate counsel has filed a brief presenting no argument for reversal and asking this court to review the record for error as mandated by People v. Wende, supra, 25 Cal.3d 436. Also, pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers us to a potentially arguable issue, namely whether the trial court erred in sentencing defendant to the upper term of three years in state prison.
After a review of the entire record, we conclude there are no legal issues that would require further briefing. The trial court’s competency determinations for purposes of defendant’s plea, his admission to the violations of probation and his sentencing are supported by substantial evidence. (See People v. Samuel (1981) 29 Cal.3d 489, 506 [reviewing verdict of competence under substantial evidence standard].) Defendant knowingly and voluntarily entered into a negotiated disposition regarding the underlying offense wherein he pleaded no contest to dissuading a victim in violation section 136.1. Pursuant to the negotiated disposition, the court suspended imposition of sentence and placed defendant on supervised probation for a period of three years. Subsequently, defendant admitted to violating the conditions of his probation after a full advisement and knowing waiver of his constitutional rights.
Regarding appellant counsel’s identification of possible sentencing error in the trial court’s imposition of the upper term, we are cognizant that “ ‘[s]entencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation].... We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’ [Citations.]” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) Moreover, “a single factor in aggravation suffices to support an upper term” (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Kelley (1997) 52 Cal.App.4th 568, 581 [“court needs only one factor to impose the aggravated term”]), and a trial court “ need not explain its reasons for rejecting mitigating factors. (Citation.) (People v. Avalos, supra, 47 Cal.App.4th at p. 1583; People v. Lamb (1988) 206 Cal.App.3d 397, 401 “trial court need not state reasons for minimizing or disregarding circumstances in mitigation”].)
Here, the probation report shows that at the time of the commission of the present offense, defendant was on probation for two separate misdemeanor offenses committed in 2008. In this regard, in August 2008, defendant was granted three years conditional revocable release after pleading no contest to driving under the influence in violation of Vehicle Code section 23152, subdivision (a), and in October 2008, was granted three years conditional revocable release after pleading no contest to infliction of corporal injury on a current or former spouse (same victim as the current offense of conviction), in violation of section 273.5, subdivision (a). Defendant’s criminal history supports two aggravating factors, namely defendant “was on probation... when the crime was committed, ” and his “prior performance on probation... was unsatisfactory.” (Cal. Rules of Court, rule 4.421(b)(4)-(5).) On the other hand, the probation report lists as a factor in mitigation that defendant’s mental illness may have contributed to his violent behavior. On this record, no error appears in the trial court’s selection of the upper term. (People v. Osband, supra, 13 Cal.4th at p. 730 “a single factor in aggravation suffices to support an upper term”].)
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.