Filed 7/7/16 P. v. Jimenez CA4/1

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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069128

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE344676)

PABLO SANCHEZ JIMENEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Laura W.

Halgren, Judge. Affirmed.

         Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant Pablo Sanchez Jimenez's appointed appellate counsel has filed a brief

asking this court to independently review the record for error as mandated by People v.

Wende (1979) 25 Cal.3d 436 (Wende). We affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND

       A. Factual Background1

       In early October 2014, the female victim in this case reported that a man named

Pablo (Jimenez) came onto her property in Jacumba and threw a can of beer at her.

Sheriff's deputies contacted the victim, who was bleeding from a laceration to the high

cheek bone area on the right side of her face. The victim told the deputies that Jimenez

arrived at her house on a bicycle as Roberto Rangel, a witness, pulled up in his car. The

victim stated she did not like Jimenez and, when she told him to leave, he said, "Fuck you

stupid fat bitch!" They exchanged words and then Jimenez threw his can of beer at her

from six to 10 feet away. The can, which the deputies recovered, struck her in the face,

causing the laceration. Rangel reported that Jimenez arrived at the victim's home as he

(Rangel) pulled up in his car. He told the deputies that Jimenez entered onto the victim's

property, the victim told Jimenez to get off her property, and Jimenez told her, "Fuck you

you fat bitch!" and threw a can of beer striking her in the face. The victim went to the

hospital, and Jimenez was later arrested.

       B. Procedural Background

       In February 2015 a jury found Jimenez guilty of (1) assault with a deadly weapon

in violation of Penal Code2 section 245, subdivision (a)(1)), as charged in count 2 of the



1      The appellate record does not contain the reporter's transcript of the testimony
presented at the jury trial. The following summary of the facts is taken from the
probation report, which was based in part on the San Diego County Sheriff's
Department's report of the incident from which this case arose.

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amended felony complaint; and (2) simple battery in violation of section 242, a lesser

included offense of count 1 (§ 243, subd. (d) [battery with serious bodily]). The jury

found to be true enhancement allegations in count 2 that Jimenez personally inflicted

great bodily injury upon the victim within the meaning of section 12022.7, subdivision

(a)); he personally inflicted great bodily injury upon the victim within the meaning of

section 1192.7, subdivision (c)(8)); and he personally used a dangerous and deadly

weapon within the meaning of section 1192.7, subdivision (c)(23).

       During Jimenez's sentencing hearing on May 12, 2015, the court imposed but

suspended execution of both a three-year middle prison term for his count 2 felony

conviction and a consecutive three-year term for the true finding on the count 2 section

12022.7 enhancement allegation, for a total suspended sentence of six years in prison

with credit for time served. Pursuant to section 654, the court stayed execution of

sentence for Jimenez's conviction of the count 1 lesser included offense of misdemeanor

battery. The court then placed him on three years' probation with various terms and

conditions.

       On July 28, 2015, the San Diego County Probation Department filed an ex parte

supplemental report alleging Jimenez violated condition 6(i) of his probation by (1)

failing to report to probation on July 1, 2015; and (2) failing to report to probation on July

15, 2015. The probation department requested that the court issue a no-bail bench

warrant for Jimenez's arrest. The court issued the warrant and Jimenez was later arrested.



2      All further statutory references are to the Penal Code.
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       At the August 2015 probation revocation hearing, Jimenez admitted that he

violated his probation by failing to report to the probation department as directed. The

court formally revoked Jimenez's probation pending sentencing.

       At the sentencing after revocation hearing on September 2, 2015, defense counsel

asked the court to place Jimenez back on probation. The prosecutor opposed that request,

arguing that Jimenez had two prior convictions for violation of a restraining order and he

had committed two battery offenses. The court denied reinstatement of probation, and

executed the suspended six-year prison sentence. The court stated:

          "It looks like back in June [2015], he perhaps had some good
          intentions. But since that time, there isn't any showing that he went
          to those programs after June 19th. And he then failed to report to
          probation when he was told to be there on July 1st. And after that
          point, he was just simply—essentially AWOL and didn't come
          back . . . until he was picked up on the warrant. So I don't see that
          Mr. Jimenez has invested much effort at all in trying to succeed on
          probation. The crime was very serious. The victim was seriously
          injured. And the People accurately point out his criminal history
          that does involve violence. He's also not a young man. He's not old,
          but he's not an 18 year old who sometimes have better excuses for
          why they're not quite getting their act together. [¶] So for all those
          reasons, I don't see a reason to give Mr. Jimenez another chance."

       As pertinent here, the court ordered that the "$820 fine" was "deemed satisfied by

custody credit."3 The court also ordered the imposition of a previously-suspended

probation revocation restitution fine of $300 (§ 12022.44), and imposed a suspended

$300 parole revocation restitution fine (§ 1202.45). The court further ordered that "[t]he




3      This order is reflected in the court's minutes of the September 2, 2015 hearing.
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credits fall under [section] 2933.1[4] in light of the [great bodily injury] enhancement, so

that would be 237 [days] plus 35 [days] for a total of 272 days."

                                      DISCUSSION

       Jimenez's appellate counsel has filed a brief pursuant to Wende, supra, 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738 (Anders), summarizing the

proceedings below and indicating he was unable to find any reasonably arguable issues

for reversal or modification of the judgment on appeal. Jimenez's counsel has identified

four possible, but not arguable, issues under Anders: (1) "Whether the trial court abused

its discretion when it executed the suspended sentence of six years after [Jimenez]

admitted the allegations?"; (2) "Whether the trial court properly imposed a parole

revocation restitution fine pursuant to 1202.45, after it had executed the probation

revocation restitution fine pursuant to section 12022.44?"; (3) "Whether the sentencing

minute order properly reflects the trial court's verbal order that [Jimenez's] $820.00

criminal fine and penalty was satisfied by his custody credits?"; and (4) "Whether

[Jimenez] was awarded the correct amount of custody credits?"




4       Section 2933.1 provides in part: "Notwithstanding any other law, any person who
is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no
more than 15 percent of worktime credit, as defined in Section 2933." (§ 2933.1, subd.
(a).) Section 667.5, subdivision (c), provides: "(c) For the purpose of this section,
'violent felony' shall mean any of the following: [¶] . . . [¶] (8) Any felony in which the
defendant inflicts great bodily injury on any person other than an accomplice which has
been charged and proved as provided for in Section 12022.7 . . . ." Here, as noted, the
jury found to be true the enhancement allegation in count 2 that Jimenez personally
inflicted great bodily injury upon the victim within the meaning of section 12022.7,
subdivision (a).
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      We granted Jimenez permission to file a brief on his own behalf. He did not do

so.

      We have independently reviewed the record under Wende and considered the

possible issues identified by Jimenez's counsel. We have found no reasonably arguable

issues for reversal or modification of the judgment. Accordingly, we affirm the

judgment. Jimenez's appellate counsel has competently represented him in this appeal.

                                    DISPOSITION

      The judgment is affirmed.




                                                                              NARES, J.

WE CONCUR:



BENKE, Acting P. J.



McDONALD, J.




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