People v. Sebastian CA5

Filed 6/17/16 P. v Sebastian CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070709 Plaintiff and Respondent, (Super. Ct. No. F14906139) v.

ANTHONY SEBASTIAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. David Andrew Gottlieb, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Peña, J.

Anthony Sebastian pled no contest to several charges resulting from a beating he inflicted on the mother of his child, and his subsequent departure from the scene by driving a vehicle while he was intoxicated. He was sentenced to the agreed upon term of imprisonment. Appellate counsel filed a brief asserting she did not identify any arguable issues in this case. Our review of the record identified one minor issue, the failure of the trial court to sentence Sebastian on one count of misdemeanor driving with a blood-alcohol content above .08 percent. (Veh. Code, § 23152, subd. (b).) We will remand the matter to the trial court to complete sentencing, but affirm the judgment in all other respects. FACTUAL AND PROCEDURAL SUMMARY The first amended consolidated information charged Sebastian with inflicting corporal injury on the mother of his child with a prior conviction for the same crime in violation of Penal Code section 273.5, subdivision (f)(1)1 (count 1), three counts of dissuading a witness from prosecuting a crime in violation of section 136.1, subdivision (b)(2) (counts 2, 3 and 4), misdemeanor petty theft in violation of section 484, subdivision (a) (count 5), misdemeanor violation of a domestic relations restraining order in violation of section 273.6, subdivision (a) (count 6), misdemeanor driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a) (count 7), and misdemeanor driving with a blood-alcohol content above .08 percent in violation of Vehicle Code section 23152, subdivision (b) (count 8). The information also alleged Sebastian had served a prior prison term within the meaning of section 667.5. Prior to trial the parties entered into a plea agreement which required Sebastian to plead guilty (or no contest) to counts 1, 2, 3, and 8. In exchange, the trial court indicated the maximum sentence to which Sebastian would be exposed would be four years in