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Filed 1/27/22 P. v. Hover CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES MICHA EL HOVER

, Defendant and Appellant. A1 63219

( Sonoma County Super. Ct. No. S CR

- 745012

- 1 )

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) , 120 2 2.7, 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 an d affirm.

I. FACTS AND PROCEDURAL HISTORY

During the early morning of March 19, 2021

, Corey G amboa was

straddling his motorcycle while ta l king with another man on a roadway

under an overpass near a transient cam p

. 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 before2

fleeing the scene

. Gamboa was hosp italized with injuries to his right leg.

Appellant , who was homeless and a bused 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. C ode, § 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 t he probation department. Appellant urged the

court to place him on probation, citing a head injury and drug addiction as

mi tigating factors. T he court imposed the three

- year middle ter m 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, f

or 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 appell ant 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 mi tigation, which included the lack of a serious reco rd3

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

in dependently 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.) T he re 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.5 th

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

“p sychological, 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 th ese circumstances contribute to commission of4

the offense. (See People v. Flores ( Jan. 13, 2022 , A160578 ) ___ Cal.App.5 th

____ [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.5 NEEDHAM, J.

We concur.

JACKSON, P.J.

BURNS, J.

People v. Hover / A163219