IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE
December 23, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DANIEL ALBERTO RANGEL-SOLORIO, DEFENDANT AND APPELLANT.
(Sonoma County Super. Ct. No. SCR580502)
The opinion of the court was delivered by: Jenkins, J.
P. v. Rangel-Solorio
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This is an appeal from judgment following entry of a no contest plea by appellant Daniel Alberto Rangel-Solorio to one felony count of assault with a deadly weapon and his admission of an enhancement for inflicting great bodily injury. The trial court sentenced appellant to a total of six years in prison and ordered him to pay $100,909.86 in restitution, as well as other fines and assessments.
After appellant filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende), in which she raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Counsel attests that appellant was advised of his right to file a supplemental brief in a timely manner, but he has not exercised this right.
Mindful that our review is limited to grounds for appeal occurring after entry of the plea (Cal. Rules of Court, rule 8.304(b)(5)), we have examined the entire record in accordance with People v. Wende and People v. Kelly. For reasons set forth below, we agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2010, a complaint was filed charging appellant with one felony count of assault with a deadly weapon (Penal Code, § 245, subd. (a)(1)), and alleging an enhancement for inflicting great bodily injury (id., § 12022.7, subd. (a)).*fn1
The felony charge and enhancement stemmed from events occurring on March 28, 2010 in Rohnert Park. At about 5:00 a.m., Rohnert Park police officers responded to a residence to investigate a reported stabbing. There, police found the victim, Guadalupe Sanchez, in a bedroom with a one-inch puncture wound to the chest. The victim's roommates reported he had been in an altercation with appellant earlier in the evening, and had then walked home, where they found him bleeding several hours later.
At the hospital, the victim was treated for a stab wound to his left chest, which resulted in internal bleeding, fluid production in the chest cavity, a collapsed left lung, low blood pressure and anemia. The victim remained hospitalized for six days and ultimately incurred over $100,000 in medical bills.
Three hours after responding to the 911 call placed by the victim's roommates, the victim's condition stabilized, permitting police to interview him at the hospital. The victim reported that he had been making out in a car with his girlfriend, Ms. Solorio, who had also been appellant's longtime girlfriend. Suddenly, the car door opened and appellant reached across Ms. Solorio, who was seated in the driver's seat, to punch the victim, seated in the passenger seat, in the chest. The victim believed he was stabbed when punched. The victim then exited the car and confronted appellant, before ultimately running away.
Police also interviewed Ms. Solorio. She reported that, the previous night, while reclined in the seat of her car with the victim, appellant opened the door and said: "You said nothing was going on." Appellant then reached across Ms. Solorio to punch the victim five or six times. The victim yelled, "stop it," and appellant backed away. Once both men were out of the car, they chased each other around for a short time before the victim ultimately fled. Appellant then asked Ms. Solorio why the windows were fogged up, a question he repeated when he called her, very distressed, later in the night.
Following her police interview, Ms. Solorio made a police-monitored phone call to appellant to discuss the incident. Appellant told Ms. Solorio during this call that, when stabbing the victim, he deliberately pushed the knife blade into the victim's chest only one inch to avoid more seriously injuring him.
Police subsequently arrested appellant near his home, at which time he told them he had been romantically involved with Ms. Solorio for six years, but that they had separated four months earlier when he moved out of their apartment. At the present time, appellant was unsure whether the couple was still dating, but he had been told by friends that Ms. Solorio had been visiting the victim at his residence.
Appellant further told police that, on the night in question, he consumed six beers and smoked marijuana. Afterward, he and several friends went looking for Ms. Solorio at local bars, before he ultimately found her car parked outside the victim's apartment complex. Appellant opened the car door and was distressed to see the victim inside with Ms. Solorio. He reached across Ms. Solorio, attempting to pull the victim out of the car. Ms. Solorio and the victim responded by trying to push appellant out of the car, at which point appellant pulled out his knife, reached back into the car, and punched the victim in such a way that the blade protruded only an inch. Appellant intended to scare and hurt the victim, but not to kill him. Appellant recalled stabbing the victim just once, and then punching him, before confronting him again outside the car and then chasing him away.
On May 20, 2010, appellant entered a no contest plea to felony assault with a deadly weapon and admitted the enhancement for inflicting great bodily injury.*fn2 Upon entering this plea, appellant, represented by counsel, voluntarily waived certain fundamental constitutional rights, including his right to a trial by jury, to confront and cross-examine witnesses, and to not incriminate himself.
Following entry of his plea, appellant asked the trial court for probation in lieu of a prison sentence. In doing so, appellant relied upon several factors, including that his prior criminal record consisted of only two driving violations, that he stabbed the victim just once, making a cut less than one inch deep, that he was understandably provoked by finding his long-term girlfriend with another man, that had a lengthy employment record and strong family support, and that he was remorseful for his crime. In addition, appellant noted that he was the acting parent of Ms. Solorio's young son (although he was not his actual father), and that the victim had a short recovery period.
Ms. Solorio also wrote to the court in support of probation for appellant. She noted that appellant had helped raise her son since he was 18 months old. She also noted that the victim's recovery period was quite short, particularly when compared to the recovery period appellant himself had experienced five years ago when he was the innocent victim of a brutal attack. Even though, five years ago, appellant had been left for dead and had to be airlifted to a hospital to undergo major surgery, his attackers received sentences no longer than nine years.
The victim initially supported probation for appellant, but later indicated to the trial court his preference that appellant receive a prison sentence.
Appellant's probation officer also recommended that probation be denied. While acknowledging appellant had a limited criminal history, was remorseful for his crime, and had many attributes supportive of rehabilitation, the probation officer noted that appellant's crime involved a deadly weapon and great bodily injury, and that the victim was particularly vulnerable given that he was confined in a small space when the attack occurred. The probation officer further noted that appellant's ability to comply with probation could be hindered by his history of substance abuse, immigration status and other factors. Appellant had admitted to police that he drank alcohol daily in the month leading up to the attack because he was depressed and having financial problems, that he regularly used marijuana (although his use had declined in recent months since moving in with his father), and that he used methamphetamine about once a month, including on the afternoon of the assault.*fn3 Further, appellant had lived in this country for the past nine years without documentation.
On July 9, 2010, following a sentencing hearing, the trial court denied probation for appellant and sentenced him to six years in prison, including a three-year mid-term sentence for count one and a three-year sentence for the great bodily injury enhancement. In addition, the trial court ordered appellant to pay $100,909.86 in restitution to the Department of Corrections and Rehabilitation, to be distributed to various medical providers owed money for the victim's treatment. In reaching this decision, the trial court found relatively equal the factors weighing in aggravation (including the victim's vulnerability and appellant's use of a deadly weapon and infliction of great bodily harm) and those weighing in mitigation (including his limited criminal record and successful completion of two past conditional sentences). However, the trial court also found there was a limitation on his authority to grant probation given the nature of appellant's offense, unless it were to find that unusual circumstances exist such that probation in this case would best serve the interests of justice. (Cal. Rules of Court, rule 4.413, subd. (b); § 1203, subd. (e).) Here, the trial court concluded, there were no such unusual circumstances.
Following entry of this judgment, on July 13, 2010, appellant filed a timely notice of appeal.
Neither appointed counsel nor appellant has identified any issue for our review. Upon our own independent review of the entire record, we agree none exists. (People v. Wende, supra, 25 Cal.3d 436.) Appellant, represented by competent counsel, was denied probation and sentenced to prison for six years (three years for felony assault with a deadly weapon and three years for the great bodily injury enhancement). In imposing this sentence, the trial court reasoned that his authority to order probation was limited by the nature of appellant's crime and the absence of any unusual circumstances indicating that probation in this case would nonetheless best serve the interests of justice. (§ 1203, subd. (e)(2), (3); Cal. Rules of Court, rule 4.413.)*fn4 The trial court acted within its discretion in finding this narrow exception did not apply. (See People v. Stuart (2007) 156 Cal.App.4th 165,178 [holding that rule 4.413 "is permissive, not mandatory," and that " 'the trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions' "].)
The trial court then weighed the various factors in mitigation and aggravation and, finding them relatively equal, sentenced appellant to the middle term of three years for the felony offense, with three additional years for the enhancement. The trial court also ordered appellant to pay $100,909.86 in restitution, representing costs related to the victim's medical care, as well as other statutory fines and assessments. This sentence was lawful, and was imposed in accordance with appellant's valid plea agreement. (Cal. Rules of Court, rules 4.413, 4.420-4.423; §§ 1016-1018, § 1192.5.) Having ensured appellant has received adequate and effective appellate review, we affirm the trial court's judgment. (People v. Kelly, supra, 40 Cal.4th at pp. 112-113; People v. Wende, supra, 25 Cal.3d 436.)
The judgment is affirmed.
We concur: McGuiness, P. J. Pollak, J.