Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge. Super. Ct. No. TF004958A
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Kane, J.
PROCEEDINGS
On October 31, 2007, appellant, David James Warner, was charged in an information with torture (Pen. Code, § 206, count one), three counts of assault with a deadly weapon or force likely to cause great bodily injury (§ 245, subd. (a)(1), counts two, three & four), two counts of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a), counts five & nine), attempting to dissuade a witness from testifying by force or fear (§ 136.1, subd. (c)(1), count six), two counts of false imprisonment (§ 236, counts seven & ten), and making a criminal threat (§ 422, count eight). The information alleged appellant committed great bodily injury pursuant to section 12022.7, subdivision (a) (counts one, two, three, four, seven, eight, & ten) and pursuant to section 12022.7, subdivision (e) (counts five & nine). The information also alleged to prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
On August 25, 2008, the parties entered into a plea agreement, executing a felony advisement of rights, waiver, and plea form (plea waiver form). In the plea waiver form, appellant acknowledged the terms of the plea agreement, the consequences of his plea, and his constitutional rights pursuant to Boykin/Tahl. Appellant waived his constitutional rights in the form. Appellant pled no contest to counts five and nine as well as the great bodily injury allegations alleged as to those counts in return for a stipulated prison term of 15 years. The remaining allegations were dismissed.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On October 14, 2008, the court rejected the plea agreement and appellant withdrew his no contest pleas. On October 15, 2008, appellant brought a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118. Although the court denied the motion, it appointed Dr. Eugene T. Couture to conduct a psychological examination of appellant pursuant to Evidence Code section 1017.
Appellant complained that he was not taking medications when he originally entered into the plea agreement and that he wanted to go to trial on the allegations. Appellant said he needed to be evaluated for competency to stand trial. Defense counsel explained that appellant was competent and no undue pressure was placed on him to enter into a plea agreement.
Dr. Couture’s report of his psychological examination of appellant indicated appellant was taking four medications for a mental illness. Appellant complained about having delusions and being paranoid. Dr. Couture thought that appellant was exaggerating reading deficits to malinger. Although appellant tested as incompetent in one test, he was clearly malingering as demonstrated by giving only partial answers to questions. Dr. Couture concluded appellant was malingering and would have to be found competent. Appellant was not cooperative during his assessment. Dr. Couture did not recommend a competency evaluation pursuant to section 1368.
On December 1, 2008, the trial court reviewed Dr. Couture’s report in an in camera hearing. Appellant again entered into a plea agreement, executing a new plea waiver form acknowledging his constitutional rights and waiving them. Under the agreement, appellant would admit counts five and six as well as the great bodily injury enhancement alleged in count five. Count six would be amended to allege a great bodily injury enhancement pursuant to section 12022.7, subdivision (a), which appellant would admit. Appellant would receive a stipulated sentence of 15 years and the remaining allegations would be dismissed.
The court established that appellant executed the plea waiver form, reviewed the rights listed therein, and had no question regarding his rights. The parties stipulated that offense reports and the preliminary hearing transcript provided a factual basis for appellant’s plea. Appellant stipulated to amendments to count six, including the addition of a great bodily injury allegation. Appellant pled no contest to count five and admitted the section 12022.7, subdivision (e) enhancement. Appellant admitted count six and the section 12022.7, subdivision (a) enhancement. The remaining allegations were dismissed.
Appellant requested immediate sentencing. The trial court sentenced appellant to prison for upper term of four years on count five plus a five-year enhancement. On count six, the court sentenced appellant consecutively to the midterm of three years plus three years for the enhancement. Appellant’s total prison term is 15 years. The court granted applicable custody credits and imposed a restitution fine and other fees. The appellant filed a timely notice of appeal, securing a certificate of probable cause. At the conclusion of a contested restitution hearing for the victim’s damages, the court awarded direct victim restitution of $32,121.86.
FACTS
Appellant lived together with P. A family friend visited the home in August 2007 and found P. had suffered a severely bad beating. Appellant had injuries to his hands. P. seemed scared. P. also suffered a burn mark. Kern County Sheriff’s Deputy Phillip Garza was present when a Taft police officer questioned P. on August 4, 2007, in an urgent care facility. Garza described P.’s injuries referring to photographs taken of her. P. suffered from bruising, swelling, and disfigurement all over her face, eyes and ears. She also had bruising and swelling on her chin, forehead, and neck. Bruises almost completely covered P.’s right arm and she had large bruises on her left arm. The back of P.’s hands were swollen. P. also had large bruises and cuts to her legs. P. said she was injured by a couple of girls during a fight at a 7-11 store.
Garza questioned P. on August 17, 2007, at a residence for the victims of domestic violence. P. explained that she started a dating relationship with appellant in January 2007 and they had been living together the past couple months. On August 3, 2007, P. said appellant argued with her, accusing her of seeing other men. He then slapped P.’s face. They went for a drive. Appellant threatened to kill P. Appellant kicked and beat P. in an oil field. They went home where appellant continued to beat P. and to threaten to kill her.
On August 9, 2007, appellant zapped P. two or three times on the collar bone with an electrical cord plugged into an electrical outlet as she was taking a shower. Appellant threatened to kill P. if she told anyone what happened. Appellant proceeded to hit P. with a wooden hammer handle, a flashlight, a green butane tank, a cane, steel-toed boots, and an electrical cord.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (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 June 15, 2009, we invited appellant to submit additional briefing. To date, he has not replied.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.