People v. Spellman CA4/3

Filed 5/4/21 P. v. Spellman CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059455

v. (Super. Ct. No. 18WF0575)

JOSEPH ROBERT SPELLMAN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

On January 30, 2019, appellant Joseph Robert Spellman pleaded guilty to kidnapping (Pen. Code, § 207, subd. (a): all statutory citations are to the Penal Code), two counts of false imprisonment by menace (§§ 236, 237, (subd. (a)), three counts of assault with a deadly weapon (§ 245, subd. (a)(1)), assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), and vehicle theft. Spellman admitted he inflicted great bodily injury on the victim. (§ 12022.7, subd. (a).) Spellman also admitted he had been sentenced to four prior prison terms and had been convicted of a strike offense. (§ 667, subd. (a)(1).) The trial court sentenced Spellman to 12 years in state prison by imposing the five-year mid-term on the kidnapping count, doubling it to 10 years for the strike prior, and adding a consecutive two-year term on the assault with a deadly weapon count. All other counts were either stayed under section 654 or imposed concurrently. Spellman in 2020 filed three successive petitions for a new sentencing hearing under section 1170.91, which requires trial courts to consider service-related trauma, substance abuse, and mental health problems as mitigating factors weighing in favor of a low-term sentence. Subsection (b)(1)(B) of the statute limited its scope to persons sentenced before January 1, 2015. On July 21, 2020, the trial court concluded Spellman was ineligible for resentencing under section 1170.91 because he was sentenced after January, 1, 2015. We appointed counsel to represent Spellman on appeal. Counsel filed a brief summarizing the facts underlying the crimes and the procedural history of the case. Counsel did not argue against his client, but advised us there were no issues to raise on Spellman’s behalf. Counsel asked us to review the record to determine whether there were any arguable issues to raise on Spellman’s behalf, per the procedures outline in People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel advised Spellman he was filing a brief under Wende, and that Spellman could file a supplemental brief on his own