P. v. Watson
Filed 11/8/13 P. v. Watson CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
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>
THE PEOPLE, Plaintiff and Respondent, v. JOHATHAN MAYHEW WATSON, Defendant and Appellant. | C072603 (Super. Ct. No. 12F01475) |
Appointed counsel for defendant
Jonathan Mayhew Watson asked this court to review the record to determine
whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result
in a disposition more favorable to defendant, we affirm the judgment.
We provide
the following brief description of the facts and procedural history of the
case. (People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
FACTS
On
February 26, 2012, at 7:30 p.m., Kristen M. returned to her apartment to
find her couch cushions upended, her suitcases opened, and defendant (a man not
known to Kristen M.) standing in her apartment.
Defendant was holding several of Kristen M.’s purses, her guitar, and a
backpack. Kristen M. yelled out to
defendant, defendant ran into the kitchen, and Kristen M. followed him. As Kristen M. pursued defendant, defendant
threw the guitar at her. Kristen M. and
defendant both fell and defendant began throwing purses at Kristen M. Kristen M. chased defendant outside, around
the backyard, and over a white fence. Then
she went inside to call the police.
Meanwhile, Kristen
M.’s landlady Nancy M. (who lived in the apartment above Kristen M.’s) heard
glass breaking and Kristen M. screaming.
Nancy M. ran out of her apartment and saw Kristen M. “fighting†with
defendant as they were coming out of Kristen M.’s apartment. Nancy M. also chased defendant as he tried to
leave through a fence gate; when she reached defendant, he punched her in the
neck. Defendant then tried to flee over
the fence but became stuck on the top of the fence, dangling upside down and
kicking his feet.
From the
top of the fence, defendant kicked Nancy M. and she fell to the ground. Nancy M. got to her feet as her husband Grant
M. arrived and warned Nancy M. that defendant had a knife. Grant M. then tried to stop defendant by
grabbing defendant’s backpack while he was still hanging from the fence. Defendant continued kicking at Grant and Nancy
M., kicking Nancy M. in the chest. Then, according to Grant M.: “All of a sudden there was a big kitchen knife
being waved in my face.†Grant M. let go
of defendant and told Nancy M. to back up.
They watched defendant get down from the fence, walk to a nearby parking
lot, get on a bicycle, and ride away.
Police
Officer Lilia Vasquez found defendant on the street, standing near a bicycle
and a tree with a knife stuck in it.
Defendant was breathing heavily and sweating, his pants torn and
bloodied. Vasquez searched defendant’s
person and found Kristen M.’s employment identification photograph, jewelry,
camera, and mail. Kristen M. and Nancy
M. later identified defendant as the man who had been in Kristen M.’s
apartment.
Defendant
was arrested and charged with robbery
(Penal Code, § 211)
name="_ftnref1" title="">[1],
first degree burglary of a dwelling (§ 459), and felony assault (§ 245,
subd. (a)(4)). The charging document
further alleged defendant had six prior felony strike convictions (§§ 667,
subds. (b)-(i), 1170.12.) Defendant pleaded
not guilty to the charges and denied the allegations; his pretrial motion to
suppress evidence was denied.
Following a
jury trial, defendant was found guilty of robbery, first degree burglary, and
misdemeanor assault. The trial court
later found true five of the alleged prior felony convictions and sentenced
defendant to 15 years in state prison plus an indeterminate term of 25 years to
life. The trial court imposed various
fines and fees and awarded defendant 287 days of
DISCUSSION
We appointed
counsel to represent defendant on
appeal. Counsel filed an opening brief
setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d
436, requesting the court to review the record and determine whether there are
any arguable issues on appeal. Defendant
was advised by counsel of the right to file a supplemental brief within 30 days
of the date of filing of the opening brief.
Defendant
filed a supplemental brief raising
several claims of error. First,
defendant contends the trial court “showed bias by not allowing defendant a
fast and speedy trial and failed to consider defendant[’s] age of 61.†The issue of bias was not raised in the trial
court; it cannot be raised for the first time on appeal. (People v.
Beaumaster (1971) 17 Cal.App.3d 996, 1009.)
To the
extent defendant is separately arguing the trial court wrongly denied him a
speedy trial, this argument fails as well.
Absent a time waiver, defendant was entitled to have an information
filed within 15 days of being held to answer (§ 1382, subd. (a)(1)) and
was entitled to be brought to trial within 60 days of his arraignment on the
information. (§§ 1382, subd.
(a)(2); 1049.5.) Defendant was arraigned
on February 28, 2012,
the same day the operative complaint was filed.
On April 16, 2012,
defendant agreed to a 10-day time waiver.
On May 9, 2012,
the complaint was deemed the information.
On June 25, 2012,
defendant agreed to another time waiver and trial was set for August 15, 2012. Trial began on August 15, 2012.
Accordingly, on this record, we find no error.
Defendant
also raises the issue of his age without reference to exactly how his age was
relevant to the issues at trial. On this
record, defendant’s age was arguably relevant only at sentencing. At sentencing, the trial court noted for the
record that it had reviewed the probation report, which included defendant’s
age. Defendant’s trial counsel also
argued defendant’s age as a mitigating factor in support of his
Accordingly, the trial court was clearly made aware of defendant’s age
at the time of sentencing. We presume
the trial court thus took defendant’s age into account when it determined there
were no mitigating factors in sentencing defendant. (See ADDIN BA xc <@st> xl 17 s
ZPPEFC000011 xpl 1 l "Evid. Code, § 664" Evid. Code, § 664 [it is
presumed that official duty has been regularly performed]; see also ADDIN BA xc <@cs> xl 43 s ZPPEFC000012
xhfl Rep xpl 1 l "Brewer v.
Simpson
adopt all inferences in favor of the judgment].) We find no error.
Defendant
further contends he received ineffective assistance of counsel because trial
counsel failed to put on evidence that defendant was recently released from
mental hospitals, did not allow defendant to testify on his own behalf, and
failed to present testimony from defendant’s brother and his friend. To establish ineffective assistance of
counsel, defendant must demonstrate that counsel’s performance was deficient
and that defendant suffered prejudice as a result. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674,
693, 696]; People v. Ledesma
(1987) 43 Cal.3d 171, 216-218.)
“ ‘ “[If]
the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,†the claim on appeal must be rejected.’ †(
264, 266.) The record on appeal is
silent as to why trial counsel made the litigation decisions about which
defendant is now complaining. We
therefore reject this claim.
Having also
undertaken an examination of the entire record, we find no arguable error that
would result in a disposition more favorable to defendant.
DISPOSITION
The
judgment is affirmed.
RAYE , P. J.
We concur:
NICHOLSON , J.
ROBIE ,
J.
name="_ftn1" title="">[1]
Further statutory references are
to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2] People v.
Superior Court (1996) (Romero) 13 Cal.4th
497.
