People v. Walton CA1/1

Filed 10/9/14 P. v. Walton CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A141584

v. (Lake County DOW EDWIN WALTON, Super. Ct. Nos. CR932596 & CR933692-A) Defendant and Appellant.

INTRODUCTION In this case, appellate counsel made an independent review of the proceedings below and concluded the record reflects no meritorious claims for appeal. He has advised defendant of his conclusion and advised defendant he may file a supplemental brief raising issues he believes merit appellate review. Defendant has not filed any such pleadings. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 118-119, counsel asks this court to conduct an independent review of the record. We have done so and find no issues meriting further appellate consideration. PROCEDURAL BACKGROUND On December 20, 2013 in Lake County, defendant Dow Edwin Walton entered a no contest plea to one felony count of driving under the influence (DUI) causing great bodily injury (Veh. Code, § 23153, subd. (a)) and admitted he personally inflicted great bodily injury (GBI) upon Andy Hopper (Pen. Code, § 12022.7, subd. (a)). Before entering his plea, the court admonished defendant of his maximum exposure of six years in prison. Defendant acknowledged his rights and waived them pursuant to Boykin v.

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Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. His counsel stipulated there was a factual basis for the plea. On January 10, 2014, the Lake County District Attorney filed a separate information charging defendant with felony counts of attempted robbery (Pen. Code, §§ 664, 211), grand theft from the person (Pen. Code, § 487, subd. (a)), vandalism (Pen. Code, § 594, subd. (a)), and making a criminal threat (Pen. Code, § 422). Among the enhancements in this information was the allegation defendant was ineligible for probation because he had prior felony convictions. (Pen. Code, § 1203, subd. (e)(4).) On March 4, 2014, upon motion by the district attorney, the information was amended to add one felony count of being an accessory to the attempted robbery (Pen. Code, § 32). Defendant then entered a no contest plea to the accessory charge as a felony with the understanding any sentence he received in this prosecution would be concurrent with the sentence in the pending DUI case. Again, before entering his plea, defendant acknowledged his Boykin rights and waived them. His counsel stipulated there was a factual basis for the plea. The remaining counts were dismissed by the court upon motion by the prosecution. On March 28, 2014, defendant filed a motion to continue sentencing based on his need for an operation, the amputation of his foot and lower leg. On April 7, 2014, the trial court denied the request for a continuance and proceeded to hold the sentencing hearing. The court made this ruling after meeting with the medical director of the county jail where defendant was housed. The court stated, “It does appear that the procedure that’s going to take place can proceed either way before or after sentence.” At the sentencing, defense counsel first asked for probation pursuant to Penal Code section 1203, subdivision (e)(4). He argued in the alternative for the middle-term sentence on the felony DUI. The trial court denied the two requested options by defense counsel. The court selected the upper term of three years for the DUI-with-injury conviction citing the following aggravating factors: the DUI involved great bodily injury, 2