People v. Shivalila CA1/2

Filed 9/14/22 P. v. Shivalila CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A164966
v.
ITURI SHIVALILA, (Mendocino County
Super. Ct. No. 21CR01660)
Defendant and Appellant.
Defendant Ituri Shivalila appeals from a judgment entered after he
pled no contest to assault likely to cause great bodily injury and admitted the
allegation of great bodily injury. Defendant’s court-appointed counsel has
filed a brief asking this court for an independent review of the record under
People v. Wende (1979) 25 Cal.3d 436. Defendant was informed of his right to
file supplemental briefing and has not filed such a brief. We have reviewed
counsel’s brief and independently reviewed the record, and we find no errors
or other issues requiring further briefing. Accordingly, we affirm.
On September 9, 2021, defendant was charged by information with
assault by means of force likely to cause great bodily injury (Pen. Code, § 245,
subd. (a)(4); count 1),1 and first degree burglary (§ 459; count 2). As to the
All further statutory references are to the Penal Code unless
1
otherwise stated.
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assault count, the information alleged the special allegation that defendant
inflicted great bodily injury upon a person not an accomplice to the offense
(§ 12022.7, subd. (a)), and as to the burglary count, that another person was
present during the burglary, making it a violent felony within the meaning of
section 667.5, subdivision (c)(21).
As part of a negotiated disposition, on January 21, 2022, defendant
pled no contest to the assault likely to cause great bodily injury count and the
special allegation (count 1), with an indicated sentence of probation with no
more than one year in county jail. In exchange, the district attorney
dismissed the remainder of the information pursuant to plea, as well as two
other cases against defendant.2
According to the preliminary hearing transcript, the incident giving
rise to the current charges began early in the morning on August 16, 2021, in
Willits. Officer Natalie Higley of the Willits Police Department responded to
a trailer park at about 6:20 a.m. that day, where she spoke to Mr. Kester,
who lived in trailer 7. Kester told her he saw light outside his trailer and
heard an unusual rustling and banging noise coming from inside trailer 6,
the trailer next door to his. Kester went to trailer 6 and saw a person
wearing a dark hat and clothing leave the trailer. Kester had seen this
person around the trailer park the day before. ~(7 RT 69)~ Kester then saw
Mr. Boles, who lived in trailer 6, and called 911. ~(RT 69)~
2 The two other cases were case No. 21CR01661, a three-count
misdemeanor complaint filed on or about August 15, 2021, alleging elder
abuse, vandalism, and resisting a police officer, all misdemeanors; and case
No. 21CR02370, filed on or about August 18, 2021, alleging four counts of
battery and four counts of battery by gassing, all misdemeanors, occurring in
the jail. As to the elder abuse case, defendant entered a Harvey waiver
(People v. Harvey (1979) 25 Cal.3d 754), for purposes of an order to stay away
from the person involved in that case.
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While Officer Higley was talking to Kester, Boles interrupted their
conversation by yelling out “Ituri.” Boles appeared, holding a paper towel on
his face and bleeding. He had a gash above both eyes and on his nose. Boles
was certain that “Ituri” had caused his injuries. Boles was distraught; he
thought defendant was his friend. An ambulance was called for Boles.
A few minutes later, defendant was detained by Sergeant Ricco McCoy
and Officer Damian Angell, also of the Willits Police Department. (Both of
them also testified at the preliminary hearing.) Officer Higley arrived shortly
after defendant had been detained. Higley could see what looked like
droplets of blood on defendant’s pants and on his thumbnail. Defendant was
wearing dark clothing similar to Kester’s description.
Later that day, Boles was able to provide Higley more details. (At this
point, Boles was back at the trailer park, with stitches above both eyes, and
his right eye socket was swollen and black and blue.) Boles said he was in
his bed sleeping or resting when defendant came into his trailer without
permission, and then started yelling at him and hitting him. Defendant said
something like “you’re messing with my girlfriend or my wife and I’m going to
kill you.” Boles recalled being hit and losing consciousness, and then woke
up with blood on his face and injuries. He discovered that his two cell phones
were missing.
Officer Angell testified that when he was pursuing defendant by foot
just before defendant was detained, defendant was wearing dark clothes and
a camo backpack. Angell was familiar with defendant from multiple previous
encounters. At some point as Angell was pursuing him between buildings,
defendant dropped his backpack and Angell stepped over it. Sergeant McCoy
subsequently retrieved the backpack and found two cell phones inside that
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matched Boles’s description of his missing property. Boles later confirmed
that the phones belonged to him.
Defendant completed a change of plea form that advised him of his
rights and the rights he was waiving; the forms were signed by his counsel
and by the court. Defense counsel stipulated to a factual basis for the no
contest plea to count 1 and the special allegation based upon the preliminary
hearing transcript. The court reviewed the change of plea form, questioned
defendant, and found defendant knowingly, voluntarily, and intelligently
waived his rights and entered a plea of no contest.
At the change of plea hearing, the court also noted that given
defendant’s admission of the great bodily injury allegation, he would
ordinarily be ineligible for probation unless the court found unusual
circumstances that would warrant it in the interest of justice. Noting that
the district attorney was willing to agree to a grant of probation, the court
found unusual circumstances that warranted it here. The court stated that it
had heard the preliminary hearing in this matter as well as the opposed
motion for mental health diversion under section 1001.36, which the court
had denied after an evidentiary hearing. A factor that “weigh[ed] heavily” in
the court’s decision to consider probation was defendant’s mental health
diagnosis, the fact that he had now resumed taking medicine, the attitude
that he expressed toward medication and ongoing treatment, and his desire
to follow though with a treatment plan.
At the sentencing on February 16, 2022, the court stated that it had
read and considered the presentence investigation report. The court noted
that defendant had no prior felony record, and reiterated its reasons for
having defendant supervised in the community on probation rather than in
state prison.
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Consistent with the anticipated disposition, imposition of sentence was
suspended, and the trial court placed defendant on supervised probation for a
period of three years with conditions including that he serve 185 days in the
county jail, with 185 days credit for time served. Among other conditions, the
court ordered defendant to have no contact with Boles or one of the alleged
victims in the dismissed case No. 21CR01661, and to be evaluated by a
licensed therapist or mental health department and follow through with a
recommended course of treatment. The court reserved the issue of victim
restitution to Boles.
After stating all of the terms and conditions of probation, the trial
judge asked defendant whether he accepted them, and he said yes.
Defendant also signed the Order of Probation indicating his understanding of
the terms of his probation and agreeing to abide by them. The court clarified
that probation was for a three-year term because defendant pled to a strike
offense, but confirmed to defendant in response to his question that if he is
“doing great” she would consider modifying his probation to a shorter term in
the interest of justice.
DISCUSSION
We have reviewed the record on appeal for any arguable issues.
Defendant was sentenced after a no contest plea and did not obtain a
certificate of probable cause. Any issues as to the validity of his plea are not
before us. (§ 1237.5.) Before entering his no contest plea, defendant was
advised of his rights, and there is no indication he did not understand his
rights, including the rights he was waiving. The court found defendant had
knowingly, voluntarily, and intelligently waived his rights and his plea was
voluntary. Counsel stipulated to the factual basis for the plea based upon the
preliminary hearing transcript.
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The sentence imposed is authorized by law and was in compliance with
the plea agreement. Custody credits appear to have been calculated
correctly.
Based on our review of the record, defendant was represented by
competent counsel who acted to protect his rights and interests.
We conclude there are no arguable issues within the meaning of People
v. Wende, supra, 25 Cal.3d 436.
The judgment is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A164966, People v. Shivalila
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