People v. James CA1/1 ( 2013 )

Filed 12/13/13 P. v. James CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A137321
v.
MICHAEL CHRISTOPHER JAMES, (Napa County
Super. Ct. No. CR-156725)
Defendant and Appellant.
Michael Christopher James appeals from the judgment entered following his no
contest plea. His counsel has raised no issues and asked this court for an independent
review of the record to determine whether there are any issues that would, if resolved
favorably to defendant, result in reversal or modification of the judgment. (People v.
Kelly (2006) 40 Cal. 4th 106; People v. Wende (1979) 25 Cal. 3d 436; see Smith v.
Robbins (2000) 528 U.S. 259.) Counsel notified defendant that he could file his own
supplemental brief, raising any points he chooses to call to this court’s attention. No
supplemental brief has been received from defendant. Upon independent review of the
record, we find the abstract of judgment and sentencing minutes must be corrected to
strike the concurrent sentence imposed for corporal injury to a spouse and instead to
provide that sentence be stayed on that count under Penal Code1 section 654, as well as
on the associated enhancement. No other arguable issues are presented for review.
Accordingly, the judgment is affirmed in all other respects.
1
All further statutory references are to the Penal Code.
STATEMENT OF FACTS AND PROCEDURAL HISTORY2
Defendant was charged by amended information on March 29, 2012, with
kidnapping (§ 207, subd. (a)) and inflicting corporal injury to a spouse (§ 273.5,
subd. (a)). As to both counts, the information alleged defendant had inflicted great bodily
injury on the victim under circumstances involving domestic violence. (§ 12022.7,
subd. (e).) Defendant pleaded not guilty to both counts.
Defendant and the victim, his wife, attended a wedding and reception on the
afternoon and evening of April 30, 2011. Both defendant and his wife were drinking at
the event. Defendant appeared to be intoxicated. The couple got into an argument in the
parking lot outside the event about whether they would host an after-party with some of
their friends and whether her parents would take both of their children for the night. He
forced her into his vehicle and drove off with her. During the ride, he struck her
repeatedly in the face with his elbow, breaking her nose and teeth, inflicting other
injuries, and causing her to briefly lose consciousness.
On June 6, 2012, defendant changed his plea to no contest on both counts, and
admitted the truth of the great bodily injury allegations attached to both counts pursuant
to an agreement providing for a maximum sentence of nine years in prison. The parties
stipulated that the preliminary hearing transcript provided a factual basis for the plea.
On October 10, 2012, defendant was sentenced to eight years in state prison,
consisting of the middle term of five years on the kidnapping charge plus the low term of
three years for the great bodily injury enhancement on that count. The court addressed
count two as follows: “As to count two, imposition of sentence as to that offense is
stayed pending the completion of the offense [sic] on count number one, and imposed a
midterm of three years. And that sentence is concurrent to the sentence in count one.”
The abstract of judgment reflects imposition of a concurrent sentence on count two and a
stay of the enhancement on that count. The court ordered victim restitution in the
2
Since the present appeal is taken from a no contest plea, we need only concisely
recite the facts pertinent to the underlying conviction as necessary to our limited review
on appeal. The facts are summarized from the transcript of the preliminary hearing.
2
uncontested amount of $12,913.94, imposed a restitution fine in the amount of $500, and
ordered an additional restitution fine pursuant to section 1202.45 in the amount of $500
to be stayed pending successful completion of parole. Defendant was given presentence
credit for 605 days, including 526 actual days and 79 days of conduct credit.
Defendant timely filed his notice of appeal pro se. He requested a certificate of
probable cause, citing the following as “reasonable constitutional, jurisdictional, or other
grounds going to the legality” of his no contest plea: (1) “Limit on consecutive terms
violate the prohibition against cruel or unusual punishments of the [California]
constitution,” (2) “Violates [section] 654 for multiple punishments for the same Act or
omission requires a stay of execution of the sentence impose[d] on some of the counts,”
(3) “Multiple strikes under 3 strikes law . . . [arising] out of one case,” and
(4) “Constitutionally disproportionate to other sentences imposed by similar cases.” The
trial court granted the request for a certificate of probable cause.
DISCUSSION
We have reviewed the record on appeal. By entering a plea of no contest,
defendant admitted the sufficiency of the evidence establishing the crimes, and therefore
is not entitled to review of any issue that goes to the question of whether he is guilty or
not guilty. (People v. Hunter (2002) 100 Cal. App. 4th 37, 42.) Having reviewed the
entire record we find no arguable error that would result in a disposition more favorable
to defendant. However, as we explain, our review reveals the need to correct the abstract
of judgment and sentencing minutes.3
The abstract of judgment shows a concurrent sentence on count two and a stay of
the section 10122.7, subdivision (e) enhancement on that count. The sentencing minutes
reflect concurrent terms on count two and the associated enhancement. However, we
construe the trial court’s oral pronouncement of sentencing as staying imposition of the
middle term of three years on count two rather than imposing that term concurrently. A
stay of sentence is the appropriate disposition under section 654. Since the court stayed
3
We requested and received letter briefs from the parties on this issue.
3
sentence on count two, it could not impose any additional punishment on the
enhancement for that count. The abstract therefore accurately reflects a stay of sentence
for the enhancement. We will therefore direct that the abstract of judgment and
sentencing minutes be corrected to reflect that sentence on count two and the associated
enhancement were both stayed under section 654.
Defendant was represented by counsel throughout the proceedings through entry
of his plea and sentencing. We find no support in the record for any claims on appeal of
ineffective assistance of counsel. Defendant was fully advised of the consequences of his
plea, and the trial court correctly found there was a factual basis for the plea, and the plea
was given freely and voluntarily.
We find no meritorious sentencing issues that would require reversal of the
judgment. We find no violation of the prohibitions against cruel or unusual punishments
in the California or federal constitutions, no violation of section 654, no violation of the
“Three Strikes” law, and no unconstitutional disproportionality in defendant’s sentence.
The victim restitution amount of $12,913.94 and restitution fines imposed by the
court were appropriate.
We find no arguable issues that require further briefing and, accordingly, affirm
the judgment.
DISPOSITION
Upon issuance of the remittitur, the clerk of the superior court is directed to
prepare an amended abstract of judgment and amended sentencing minutes striking the
concurrent sentence imposed for corporal injury to a spouse and instead to provide that
sentence be stayed on that count under section 654 as well as on the enhancement for that
count, and to deliver a copy of the corrected abstract to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is affirmed.
4
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
5