Opinion
A152471
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH GENE TOWNSEND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Del Norte County Super. Ct. No. CRF17-9162)
In a negotiated plea, Kenneth Gene Townsend admitted assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) upon his mother, and elder abuse with great bodily injury (§§ 368, subd. (b)(2)(B), 12022.7, subd. (c)). He received a stipulated sentence of 14 years in state prison.
All statutory references are to the Penal Code.
Assigned counsel submitted a Wende brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Townsend was advised of his right to personally file a supplemental brief raising any points which he wished to call to the court's attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.) We find no arguable issues and therefore affirm.
People v. Wende (1979) 25 Cal.3d 436.
Prior to the filing of the opening brief, we received a letter from Townsend asserting he and his mother "reconciled" and complained they both attempted to have this case dismissed, but were refused. The letter does not raise any legal or factual issues for review.
BACKGROUND AND PROCEDURAL HISTORY
The facts are taken from the preliminary hearing testimony.
Townsend lived with his 82-year-old mother. On the night of April 5, 2017, Townsend began yelling and ripping up Bibles in the home. He said his mother was not a good person or a good Christian and did not deserve to have the Bibles. The next morning, Townsend came into the kitchen, where his mother was making breakfast, and physically assaulted her, stomping on her feet, and causing fractures to both feet. He then went to his bedroom and returned with a gun described as a "9 millimeter R680." Townsend typically kept the gun loaded. He put the gun to his own head and pulled the trigger but the gun did not fire. He put the gun in his mouth and pulled the trigger, and the gun again did not fire. Townsend then put the gun against his mother's cheek and tried to force it into her mouth, hurting her gums, cutting the inside of both cheeks, and causing fractures below the eyes on both sides of her face. Again, he pulled the trigger, but the gun did not fire. Townsend's mother tripped and fell, and he began repeatedly hitting her on the head and arms with sufficient force to burst the skin on her right arm and bruise her head. She also lost her left thumb nail in the beating. Townsend grabbed her by her sweatshirt so tightly that it choked her. After the assault, he fell asleep. His mother went to the house of a neighbor, who called the police. She was taken to a local hospital and then airlifted to Chico, where she spent six days in the hospital.
Townsend's mother was uncertain as to the brand of the gun, but said she and her son kept matching weapons in each of their bedrooms.
An investigating sheriff's deputy recovered a "Hungary F.E." firearm from the house. A magazine with seven rounds of ammunition was in the weapon, and the safety was off.
Following a preliminary hearing, Townsend was ultimately charged by amended information with attempted murder (§§ 664, 187; count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), elder abuse (§ 368, subd. (b)(2)(B); count 3), assault by force likely to cause great bodily injury (§ 245, subd. (a)(4); count 4), and corporal injury to a cohabitant (§ 273.5; count 5). Enhancements were alleged for personal use of a firearm (§ 12022.53, subd. (b)) as to counts 1, 3, 4, and 5, and great bodily injury (§ 12022.7, subd. (c)) as to counts 1, 2, 4, and 5.
Townsend filed a section 995 motion to dismiss counts 1 and 2, alleging that the evidence adduced at the preliminary hearing failed to establish an intent to kill as to count 1, and failed to establish that a semiautomatic firearm was used as alleged in count 2. The motion was denied after hearing.
On July 11, 2017, Townsend entered guilty pleas to assault with a semiautomatic firearm (count 2), admitting the great bodily injury enhancement, and to elder abuse with great bodily injury (count 3). Pursuant to the plea agreement, the remaining counts were dismissed and Townsend received a stipulated sentence of 14 years in state prison.
The sentence consisted of the upper term of nine years on count 2, plus five years for the special allegation of great bodily injury. A nine-year term on count 3 was stayed per section 654. --------
Townsend filed a timely filed a notice of appeal. The trial court denied his request for a certificate of probable cause (§ 1237.5) challenging the denial of his 995 motion.
DISCUSSION
Townsend's notice of appeal purports to be based on "the sentence or other matters occurring after the plea that do not affect the validity of the plea" and the section 995 motion denial. "[S]ection 1237.5 provides that a defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless he has filed in the superior court a statement of certificate grounds, which go to the legality of the proceedings, including the validity of his plea, and has obtained from the superior court a certificate of probable cause for the appeal." (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Townsend's application for a certificate of probable cause to appeal the denial of his section 995 motion was denied. Where a certificate of probable cause has been denied, denial of the certificate must be reviewed by writ of mandate, not on direct appeal. (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188.) "[E]ven if the defendant obtains a certificate of probable cause, he will be precluded from raising issues which were waived by his guilty plea." (People v. Turner (1985) 171 Cal.App.3d 116, 125.) "[C]omplaints about an illegal commitment brought via . . . section 995 are waived by a guilty plea." (People v. Woodford (1986) 176 Cal.App.3d 944, 948.) Therefore, no cognizable issues relate to his guilt, or to his plea.
We also find no arguable issues as to his sentence, which was imposed in accordance with the terms of the plea bargain. The sentence was consistent with the statutory triad and authorized enhancements. "[A] challenge to a negotiated sentence imposed as part of a plea bargain is . . . a challenge to the validity of the plea itself." (People v. Panizzon (1996) 13 Cal.4th 68, 79.) To attack the sentence on appeal, a defendant in these circumstances must seek and obtain a probable cause certificate. (Ibid.) " 'When a guilty [or nolo contendere] plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.' " (Id. at p. 80.)
DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.