P. v. Glenn

Filed 8/5/09 P. v. Glenn CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed.

Kelly M. Cronin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Lami Glenn appeals from the judgment entered following a jury trial in case number BA325275 in which he was convicted in count 1 of mayhem (Pen. Code, 203) and in count 2 of assault by means likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)) with personal infliction of great bodily injury (Pen. Code,  12022.7, subd. (a)) and his admission of a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). Appellant also appeals from an order revoking probation in case number BA309813.[1] He was sentenced to prison for ten years, consisting of the middle term of four years for count 1, doubled by reason of his prior strike, plus one-third the middle term of six years, or two years, for the probation violation. Sentence in count 2, which consisted of the middle term of three years, doubled to six years due to the strike prior, plus an additional three years by reason of the great bodily injury enhancement, was stayed pursuant to Penal Code section 654.

On March 1, 2007, Robert Ewings was in Mens Central Jail in downtown Los Angeles. He had been moved to his cell at approximately 10:00 a.m. that morning. When he first arrived, two other men were already there. Ewings brought a sandwich from his previous cell and ate it between 10:00 a.m. and 11:00 a.m. At 11:00 a.m., appellant arrived at the cell and accused Ewings of eating one of his sandwiches. Ewings claimed he had not eaten appellants sandwich. While Ewings was sitting on his bed, appellant jumped on him. With a fist, appellant hit him twice in the eyes, ten times in his stomach, and on his side. Appellant then stopped and said he was finished. Ewings was in pain but did not report the beating because he was afraid. He then fell asleep in his bed. When he was taken to the doctor for a cold, he told a deputy what had happened.

Ewingss right cheekbone was fractured in many places and his eye was slightly depressed. He also had three rib fractures on his left side. Surgery was performed on his cheekbone to prevent disfigurement. During the surgery, the remaining bones were put back together and metal mesh was inserted to support his eye. A small cut above his eyebrow was sutured.

Appellant testified that as a result of an injury, he was on a soft food diet. He was called away from his cell, and when he returned, his uneaten breakfast and lunch, as well as food items purchased from the canteen, were missing. Appellant asked one of his cellmates what happened to his food and was told that Ewings had taken the food. Ewings admitted taking the food, stating he thought it was extra. Appellant was upset because he had not eaten for approximately two days, waiting for his special diet. Appellant chastised Ewings for approximately two to three minutes, but did not threaten him. Ewings got up, mumbled that he told appellant he thought it was extra and then thr[ew] a punch in [appellants] direction. The punch hit appellant, a little bit . . . . Appellant pushed Ewings back and Ewings threw a series of punches, falling onto the metal edge of the bunk bed. Appellant did not get on top of Ewings or strike him. It was stipulated that if called and sworn as a witness, Deputy Nestor Gonzalez would testify that when he asked appellant what happened, appellant stated, Man, that fucking guy ate my sandwich and disrespected me, so I had to take care of business. This statement was obtained without a Miranda[2]admonishment. Appellant denied making that statement. Additionally, being on a soft diet did not include sandwiches.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On April 7, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.

On May 12, 2009, he filed a supplemental brief. He contends he was never interviewed by a sergeant before disciplinary action was taken, a violation of jail policy. He also contends criminal charges and his trial were delayed. Appellant has failed to show that any delay in being brought before a magistrate caused him to be deprived of a fair trial or otherwise caused him prejudice and he is, therefore, not entitled to reversal on that ground. (People v. Valenzuela (1978) 86 Cal.App.3d 427, 431.) Further, appellant cannot complain he was denied his statutory right to a speedy trial where the record reflects he waived the statutory time for trial and continuances were granted at his request. (See People v. Wright (1990) 52 Cal.3d 367, 389.) Appellants claim that the county jail violated their procedures by imposing discipline without following jail policy is not cognizable in this criminal appeal.

Appellant also contends he did not agree with the stipulation relative to Deputy Gonzalezs testimony and did not give his counsel permission to enter into the stipulation. Appellant was being represented by counsel and did not have the right to present a defense of his own choosing. [C]ounsel is captain of the ship and can make all but a few fundamental decisions for the defendant. [Citation.] [Citations.] (People v. Jackson(2009) 45 Cal.4th 662, 688.) Appellant asserts he did not make the statement Deputy Gonzalez would have testified that he made and further asserts that the statement was hearsay. He also claims his version of what happened was never heard by the jury. Contrary to appellants claim, the record reflects appellant testified and gave his version of the events. He testified he did not make the statement attributed to him by Deputy Gonzalez. Further, because statements obtained in violation of Miranda may be used to impeach a defendant who testifies at trial, appellant could properly be impeached with this statement. (See Harris v. New York (1971) 401 U.S. 222, 225-226.)

Appellant also argues that during voir dire, the court made the potential jury pool aware of the fact that he previously had been convicted of assault thus poisoning the minds of the potential jurors and that if appellant had decided not to testify at trial the jury would have still been aware of his previous conviction. Appellant also contends he was denied effective assistance of counsel based on counsels failure to raise this issue and other obvious issues. In violation of court rules, appellant has failed to cite to the record where the alleged poisoning occurred. (See Cal. Rules of Court, rule 8.360.) Additionally, defense counsels tactical decisions during trial do not amount to ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment and order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] In case number BA309813, he previously pled guilty to assault with a semi-automatic firearm. (Pen. Code, 245, subd. (b).) Execution of his six-year prison sentence was suspended and he was placed on formal probation for three years. Thereafter, probation was revoked and reinstated on the condition, inter alia, that he serve one year in jail. It was, thereafter, alleged while in custody appellant violated his probation by committing mayhem (Pen. Code, 203), assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)), and by causing injury to an elderly adult (Pen. Code, 368(b)(1)).

[2]Miranda v. Arizona (1966) 384 U.S. 436.