Filed 3/9/15 P. v. Gardea CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142798
v.
RYAN JEFFREY GARDEA,                                                 (Sonoma County
                                                                     Super. Ct. No. SCR-646272)
         Defendant and Appellant.


         Pursuant to a negotiated disposition, Ryan Jeffrey Gardea entered a plea of no
contest to felony elder abuse (Pen. Code, § 368, subd. (b)(1))1 and admitted a prior felony
conviction for which he had served a prison term (§ 667.5, subd. (b)). The court imposed
a total prison term of five years, the maximum permitted under the terms of the plea
agreement. Gardea appeals only from the sentence imposed.
         Assigned counsel has submitted a Wende2 brief, certifying that counsel has been
unable to identify any issues for appellate review. Counsel also has submitted a
declaration confirming that Gardea has been advised of his right to personally file a
supplemental brief raising any points which he wishes to call to the court’s attention. No
supplemental brief has been submitted. As required, we have independently reviewed the
record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.)
         We find no arguable issues and therefore affirm.


         1
             Undesignated statutory references are to the Penal Code.
         2
             People v. Wende (1979) 25 Cal.3d 436.


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                                    I.     BACKGROUND
       On February 15, 2014, Gardea was arrested by Petaluma police officers after
assaulting his 72-year-old father.3 Gardea choked the victim and threatened him with a
knife. Gardea threatened to kill any officer who tried to arrest him. Gardea was reported
to be 6 feet nine inches tall and weighing 360 pounds. In addition to sentence
enhancement allegations for use of a knife and two prior prison terms, Gardea was
charged by complaint with felony elder abuse (§ 368, subd. (b)(1)), unlawful criminal
threats (§ 422), and misdemeanor child endangerment (§ 273a, subd. (b)).4
       Criminal proceedings were suspended pursuant to section 1368 on March 14,
2014, after defense counsel declared a doubt as to Gardea’s competence. On May 23, the
issue of competence was submitted on the medical reports. The court found Gardea
competent and reinstated criminal proceedings. On June 2, Gardea entered a plea of no
contest to the elder abuse charge and admitted one prison prior. The plea was “open” as
to sentence, and Gardea was advised that his maximum sentence would be five years.
The court found the plea to be knowing, intelligent and voluntary.
       At the sentencing hearing on June 26, 2014, the victim appeared and told the court
that he believed placement of his son in a “program” would be more appropriate than a
prison sentence. The probation presentence report noted that Gardea had abused a
position of family trust, his prior adult convictions were “frequent, numerous and of
increasing seriousness,” and he was on a grant of conditional sentence at the time of his
arrest; the probation officer recommended commitment to the Department of Corrections
and Rehabilitation for a term of five years. Defense counsel argued that Gardea suffered
from significant mental illness and a “profound addiction to methamphetamine.” He
asked that Gardea be committed to a “dual diagnosis” treatment facility.
       3
         Gardea did not seek or obtain a certificate of probable cause and there are no
cognizable issues relating to his guilt, or to his plea. (§ 1237.5; Cal. Rules of Court,
rule 8.304(b); People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1099.) Facts underlying
his offenses were described in the probation report and are only briefly described here as
is relevant to the trial court’s sentencing choices.
       4
           Gardea’s seven-year-old son was present during the assault.


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        The trial court stated that it had read and considered the probation report and noted
that Gardea had been to at least four other treatment programs. The court acknowledged
Gardea’s mental health and addiction issues, but declined to make a finding of unusual
circumstances that would allow a probationary sentence. (Cal. Rules of Court,
rule 4.413.) The court selected the aggravated term of four years based on several facts:
Gardea took advantage of a position of trust; he had engaged in violent conduct; his adult
convictions were frequent and increasing in seriousness; he had served a prior prison
term that was not the basis for a sentence enhancement; and he had unsatisfactory
performance on multiple prior grants of probation and conditional sentence. The court
imposed an additional term of one year for the prison prior for a total of five years.
Gardea received credit for actual custody credit of 132 days, with a total credit of 264
days.
        Gardea filed a timely notice of appeal, challenging only the sentence imposed.
                                    II.     DISCUSSION
        We find no arguable issues. The trial court reviewed and considered the probation
report (which recommended a prison sentence) and the argument of counsel. Gardea was
presumptively ineligible for probation, in the absence of unusual circumstance, due to his
two prior felony convictions. (§ 1203, subd. (e)(4).) The court nevertheless considered
and rejected probation. (Cal. Rules of Court, rule 4.414.) “Probation is not a matter of
right but an act of clemency, the granting and revocation of which are entirely within the
sound discretion of the trial court. [Citations.]” (People v. Pinon (1973) 35 Cal.App.3d
120, 123.) The court then weighed aggravating and mitigating circumstances in assessing
the appropriate prison term. (Cal. Rules of Court, rules 4.410, 4.425.) The choice of the
appropriate term rests within the court’s sound discretion. (§ 1170, subd. (b); see Cal.
Rules of Court, rule 4.420.) The record amply supports the court’s choices. No arguable
issues are presented as to the fines and penalties imposed or the custody credits Gardea
received.
                                    III.   DISPOSITION
        The judgment is affirmed.


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                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.




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