Filed 3/29/18 P. v. Schleicher 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

RODERICK WARREN SCHLEICHER,

Defendant and Appellant.


G055276

(Super. Ct. No. 16WF1818)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed.
Nancy S. Brandt, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

* * *
A jury convicted Roderick Warren Schleicher of two counts of misdemeanor assault (Pen. Code, § 240; all statutory citations are to the Penal Code) as lesser included offenses of charged felony offenses. Defendant appealed, and his appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). Schleicher did not file a supplemental brief. Because our review of the record discloses no arguable issues, we affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
An information filed in October 2016 charged Schleicher with felony domestic battery with corporal injury (§ 273.5, subd. (a) [count 1]), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4) [count 2]). It also alleged Schleicher inflicted great bodily injury (GBI) in the commission of count 1 (§ 12022.7, subd. (e)).
A jury trial commenced in June 2017. Marilyn M. testified she and Schleicher were married and living together in August 2016, but divorce proceedings were pending. On the morning of August 15, Marilyn was in the kitchen making coffee when Schleicher entered. He was upset, demanded to know where his wallet and keys were, and accused Marilyn of taking them. She denied the accusation. Marilyn had two lanyards around her neck, one held car keys and the other house keys. Schleicher grabbed the keys and attempted to remove them from her neck. She told him to let her go.
The pair struggled over the keys. Schleicher dragged her through the house, down some stairs, and into the street. The pair fell on the ground and Schleicher removed the keys from her neck. Marilyn grabbed the keys and he pried her hands off them. She screamed for help, and Schleicher put his hand on her throat for several minutes.
Victor G., the mobile home park’s maintenance man, saw Schleicher on top of Marilyn. Schleicher’s hands were on Marilyn’s neck for approximately 45 seconds. Marilyn yelled, “Victor, help me, please.” Victor told Schleicher to leave Marilyn alone. Schleicher released Marilyn, denied being at fault, and departed.
An ambulance took Marilyn to the hospital. She suffered red marks on her neck, and a swollen finger and knuckles and complained of pain.
Defense
Schleicher testified he was preparing to go to divorce court, and then planned to leave for a conference. He had prepared an “emergency escape bucket” containing extra clothes, documents, tools and other items for the trip. Marilyn had previously taken his keys and wallet and refused to return them. He found a spare set of keys and drove to the police department. The police did not provide assistance so he returned home and asked again for his keys and wallet. Marilyn told him they were next to the toilet. He found his wallet but not his keys. When Schleicher started to leave again with the spare keys. Marilyn attacked him, knocked him down the steps, and tried to grab the keys from his hand. As they struggled over the keys, they both fell to the ground. Throughout the incident, Schleicher continued to hold the keys in his left hand and the “emergency bucket” in his right hand. He did not see Garcia during the incident.
Lisa S., a neighbor, saw Marilyn strike Schleicher in July 2014 during an argument concerning their divorce. Marilyn also attempted to hit Lisa. Marilyn subsequently threatened Lisa, and Lisa obtained a temporary restraining order against her. Marilyn pleaded guilty to assaulting Lisa in July 2014.
The trial court granted Schleicher’s motion to dismiss the GBI allegation at the close of the prosecution’s case. The jury convicted Schleicher of two counts of misdemeanor assault (§ 240) as lesser included offenses of the charged felony offenses.
At sentencing in July 2017, the trial court imposed a jail term of 180 days. The court found Schleicher had served 317 days of actual custody and earned 317 days of conduct credit, totaling 634 days. The court imposed a $150 restitution fine (§ 1202.4, subd. (b)), as well as court operations and criminal conviction assessment fees. There is no reporter’s transcript of the sentencing hearing. The court’s minutes reflect no court reporter was present at the proceedings.
II
DISCUSSION
Following Wende guidelines, we have reviewed counsel’s brief and the appellate record. To assist the court in its review, counsel identified two possible issues for our consideration: Whether the lack of a reporter’s transcript from the sentencing hearing denied Schleicher due process, and whether Schleicher’s restitution fine should be reduced based on his excess presentence credits. Our review of the entire record, including the matters identified by counsel, does not show the existence of an arguable issue. (Wende, supra, 25 Cal.3d at pp. 442-443.) Schleicher has not availed himself of the opportunity to file a supplemental brief (People v. Kelly (2006) 40 Cal.4th 106), nor has he requested to have appellate counsel relieved. Consequently, we affirm the judgment. (Wende, supra, 25 Cal.3d at p. 443.)
III
DISPOSITION
The judgment is affirmed.



ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.