Filed 1/27/22 P. v. Hover CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A163219
v.
JAMES MICHAEL HOVER, (Sonoma County
Super. Ct. No. SCR-745012-1)
Defendant and Appellant.
James Michael Hover appeals from an aggregate prison term of six
years imposed after he pled no contest to assault with a deadly weapon (car)
and leaving the scene of an accident and admitted an enhancement allegation
for great bodily injury. (Pen. Code, § 245, subd. (a)(1), 12022.7, subd. (a);
Veh. Code, § 20001, subd. (a).) His court-appointed counsel has filed a brief
raising no issues, but seeking our independent review of the record pursuant
to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.
I. FACTS AND PROCEDURAL HISTORY
During the early morning of March 19, 2021, Corey Gamboa was
straddling his motorcycle while talking with another man on a roadway
under an overpass near a transient camp. Appellant, then 28 years old,
drove his silver Subaru toward them and struck Gamboa while the other man
jumped out of the way. Appellant did not stop and crashed into a fence before
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fleeing the scene. Gamboa was hospitalized with injuries to his right leg.
Appellant, who was homeless and abused drugs, had had prior disputes with
Gamboa, but told the investigating officers that he had not tried to hit
Gamboa with his car.
Appellant was charged with attempted premediated murder, assault
with a deadly weapon and leaving the scene of an accident, along with an
enhancement for great bodily injury. (Pen. Code, §§ 664/187, subd. (a), 245,
subd. (a)(1), 12022.7, subd. (a); Veh. Code, § 20001, subd. (a).) Before a
preliminary hearing was held, appellant pled no contest to assault with a
deadly weapon and leaving the scene of an accident and admitted the great
bodily injury enhancement. It was an open plea with no agreement as to
sentence, which carried a maximum term of seven years, eight months. The
attempted murder count was dismissed as a condition of the plea.
At sentencing, the People argued in favor of a seven-year prison term,
the amount recommended by the probation department. Appellant urged the
court to place him on probation, citing a head injury and drug addiction as
mitigating factors. The court imposed the three-year middle term for assault
with a deadly weapon, a three-year term for the great bodily injury
enhancement, and a concurrent two-year middle term for leaving the scene of
an accident, for an aggregate sentence of six years. It cited a number of
factors in aggravation, including that the crime involved great violence, that
appellant’s vehicle had been used as a weapon, that Gamboa was vulnerable
at the time of the collision, that appellant was an active participant, and that
appellant had a criminal history involving driving (driving under the
influence and driving on a suspended license). The court found that these
factors warranted the middle term on the assault count when weighed
against the factors in mitigation, which included the lack of a serious record
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or past offenses involving violence, as well as appellant’s plea at an early
stage of the proceedings.
Appellant filed a notice of appeal indicating that he was challenging
sentencing or other matters occurring after the plea. He did not obtain a
certificate of probable cause.
II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we
affirmatively note that appointed counsel has filed a Wende/Anders brief
raising no issues, that appellant has been advised of his right to file a
supplemental brief, and that appellant did not file such a brief. We have
independently reviewed the entire record for potential error and find none.
The trial court acted within its discretion in denying probation. (People
v. Moran (2016) 1 Cal.5th 398, 402.) There is no indication the trial court
failed to consider any relevant mitigating factors or abused its discretion in
selecting the middle term of imprisonment, and indeed, the middle term is
now the presumptive prison term. (People v. Sperling (2017) 12 Cal.App.5th
1094, 1102; Pen. Code, § 1170, subd. (b)(1).) In any event, appellant did not
object to the court’s recitation of aggravating and mitigating factors and has
forfeited any challenge on this basis. (Sperling, at pp. 1100–1102.)
Appellant was over 26 years of age when he committed the crime in
this case and it does not appear from the record that he has experienced
“psychological, physical or childhood trauma” or was the victim of intimate
partner violence. (See § 1170, subd. (b)(6)(A)–(C).) He therefore is not
entitled to resentencing due to the ameliorative effect of section 1170,
subdivision (b)(6), effective January 1, 2022, which makes the lower term
the presumptive term when these circumstances contribute to commission of
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the offense. (See People v. Flores (Jan. 13, 2022, A160578) ___ Cal.App.5th
____ [2022 Cal.App. Lexis 26*, *12].)
We are satisfied that appellant’s appointed attorney has fully complied
with the responsibilities of appellate counsel and that no arguable issues
exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
JACKSON, P.J.
BURNS, J.
People v. Hover / A163219
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