Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR 236143
Richman, J.
Counsel appointed for defendant John Thomas Vincent has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was informed of his right to file a supplemental brief, but has not done so.
We have conducted that review, conclude there are no arguable issues, and affirm.
BACKGROUND
The charges against defendant stem from incidents in August and September 2006, the facts of which are taken from the stipulated statement presented at the hearing on defendant’s plea.
On August 13, 2006, defendant stabbed his ex-wife, Sharon Vincent, with a small screwdriver, poked her in the stomach with a pocket knife, and poked her in the back of the head with a metal rod. He also threw a chair at her. Sharon sustained puncture wounds and bruises.
On September 15, 2006, defendant first threw his and Sharon’s cat into the refrigerator. He then started assaulting Sharon, first while she was in the bathroom, where defendant hit her and knocked her to the ground. Defendant then followed Sharon into the living room, where he first hit her in the back. He then got a knife and threatened to kill Sharon and the cat. Defendant then poked Sharon in the head with the knife, and she began to bleed. Finally, defendant forced Sharon into their car, telling her he would kill her if she did not get in, and drove with Sharon out of the apartment complex.
An information filed November 11, 2006, charged defendant with 11 crimes: two counts of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a), counts 1 and 10); four counts of assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)), count 2 [chair], count 3 [screwdriver], count 4 [pocket knife], count 6 [knife]; attempted murder (§§ 664, 187, subd. (a), count 5); cruelty to an animal (§ 597, subd. (b), (count 7); making criminal threats (§ 422, count 8); resisting an officer (§ 69, count 9); and kidnapping (§ 207, subd. (a), count 11). The information further alleged that defendant had three previous felony convictions for which he had served terms in prison (§ 667.5, subd. (b), and that he had suffered a prior conviction for a serious or violent felony (§§ 667, subd. (a), 1170.12, subd. (a).)
All further statutory references are the Penal Code.
On November 7, 2006, defendant pleaded not guilty to all counts.
On May 22, 2008, defense counsel filed a motion to strike a serious felony, which the trial court denied on July 16.
Meanwhile, defendant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). Following a hearing on May 28, 2008, the court relieved defendant’s counsel and appointed another.
On July 16, 2008, defendant changed his pleas, to no contest on all counts but count 5. Defendant also admitted the allegations that he suffered three prior prison terms (§ 667, subd. (a)). Count 5 was dismissed. Defendant waived his right to appeal.
Following entry of his plea, defendant waived time for sentencing and was sentenced the same day, to the stipulated prison term in the plea agreement: 20 years. The twenty year term imposed was as follows: Count 11 (§ 207) was selected as the principal count, and the court sentenced defendant to the midterm of five years, doubled to ten years (per §§ 667, subd. (a) and 1170.12). The court imposed consecutive terms of one year each on counts 2 and 6 (§245, subd. (a)), and imposed consecutive one year terms for each of the three prior prison terms (§ 667.5, subd. (b)). The court imposed an additional five years for the prior serious felony (§667, subd. (a)). The court stayed sentence on counts 1, 3, 4, 8, and 9, pursuant to section 654, and stayed sentence on the remaining counts (7 and 9) in the interests of justice.
On August 5, 2008, the matter was continued in order for the defense to obtain an evaluation under section 1017. On August 26, 2008, counsel appeared on behalf of defense counsel, and advised that substitute counsel was waiting for the report, and would like to be personally present to discuss the report. The court agreed.
On September 9, 2008, defendant’s sentence was amended. Defense counsel made no objection to further sentencing proceedings going forward, and did not revisit the matter of the section 1017 report.
On September 9, 2008, the court discovered it had made an error as to counts 7 and 9, which it had stayed in the interests of justice. The court amended sentence on these counts by ordering concurrent sentences, sentencing defendant to the midterm of two years on both counts, and ordering both terms to run concurrent to the sentence imposed on count 11.
Defendant filed a timely notice of appeal on November 10, 2008. This was accompanied by a request for certificate of probable cause, which the court granted on November 24, 2008.
Counsel appointed for defendant has noted two items “in the record that might arguably support the appeal (Anders v. California [(1967)738,] 744),” as follows:
“1. Whether the trial court erred in denying [defendant’s] request to strike the prior conviction pursuant on grounds [sic] that it failed to establish that prior conviction for assault was a strikeable offense. (People v. Banuelos (2005) 130 Cal.App.4th 601.) [¶] 2. Whether the court erred in failing to order that a probation report be prepared prior to sentencing? (§ 1203, subd. (b), People v. Goldstein (1990) 223 Cal.App.3d 465.)”
DISCUSSION
As noted, we have conducted our independent review, including of the two items identified by counsel. We conclude that there is no issue which would require further briefing.
The scope of reviewable issues on appeal after a plea is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896).
Defendant was at all times represented by competent counsel who zealously guarded his rights and interests.
Defendant’s change of plea complied with Boykin v. Alabama (1969) 395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122. Defendant was advised of the consequences of the change of plea as required by In re Yurko (1974) 10 Cal.3d 857.
The trial court did not abuse its discretion in declining to strike defendant’s prior serious felony conviction. (People v. Williams (1998) 17 Cal.4th 148; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court did not err in not getting a probation report. (People v. Goldstein, supra, 223 Cal.App.3d 465, 471 472.) Defendant waived referral to probation, and expressly had “no” objection when the court ordered the $1530 restitution.
The sentence was not unauthorized.
The judgment of conviction is affirmed.
We concur: Kline, P.J., Haerle, J.