Filed 2/22/23 P. v. Swain CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, D080595 Plaintiff and Respondent, v. (Super. Ct. Nos. SCE396969, SCE399200) MATTHEW K. SWAIN, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed.

Matthew K. Swain, in pro. per.; and Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

This appeal follows convictions in two separate criminal cases. In case No. SCE396969, Matthew Swain pleaded guilty to making criminal threats (Pen. Code,1 § 422) and inflicting corporal injury on his girlfriend (§ 273.5,

1 All further statutory references are to the Penal Code. subd. (a)). Swain also admitted the use of a knife in the commission of the criminal threats (§ 12022, subd. (b)(1)).

In case No. SCE399200, Swain pleaded guilty to dissuading a witness while out on bail (§§ 136.1, subd. (b)(2), 12022.1, subd. (b)).

The remaining charges and allegations in each of the cases were dismissed. Swain was sentenced to an aggregate term of seven years and four months.

Prior to pleading guilty, Swain filed a motion for mental health diversion. The court held a hearing on the motion. The court found Swain had mental health issues, but the court could not find any evidence that Swain’s mental health issues had anything to do with the crimes with which he was charged.

Swain filed a timely notice of appeal and obtained a certificate of probable cause.

Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Swain the opportunity to file his own brief on appeal. Swain has responded by filing a supplemental brief. We will discuss his submission later in this opinion.

STATEMENT OF FACTS The convictions in each case are based on guilty pleas and not on evidentiary hearings. In case No. SCE396969, Swain admitted he made a criminal threat and that he used a knife in the commission of the offense. In case No. SCE399200, he attempted to dissuade a witness from testifying in case No. SCE396969.

DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that have been considered in evaluating the potential merits of these appeals.

1. Whether the trial court abused its discretion in denying Swain’s motion for pretrial mental health diversion.

2. Whether the sentence imposed, including the selection of the upper term was statutorily correct.

In his submission, Swain discusses matters outside the record on appeal in this case. He offers a “Certificate of Disability” which he has received from a postconviction school program in which he has been involved.

Swain has also filed a copy of a 2021 phycological evaluation he wishes us to consider. We decline Swain’s request to take “new evidence” on appeal. The parties agreed and the court accepted the fact that Swain had mental health issues. The motion for mental health diversion was denied because there was no evidence to establish that Swain’s mental health issues had anything to do with committing the crimes in these cases. Swain’s supplemental brief has not raised any arguable issues for reversal on appeal.

We have reviewed the entire record as required by Wende and Anders.

We have not discovered any arguable issues for reversal on appeal.

Competent counsel has represented Swain on this appeal.

DISPOSITION The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

BUCHANAN, J.