P. v. Garman
Filed 10/1/13 P. v. Garman CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON JAMES GARMAN,
Defendant and Appellant.
D063178
(Super. Ct.
No. SCN298061)
APPEAL from
a judgment of the Superior Court
of
County, Runston G. Maino, Judge. Affirmed.
Cannon
& Harris and Gregory L. Cannon, under appointment by the Court of Appeal,
for Defendant and Appellant.
No
appearance by Plaintiff and Respondent.
A jury
convicted Jason James Garman of one count of mayhem (Pen. Code,
§ 203) and one count of assault with force likely to produce great bodily
injury (§ 245, subd. (a)(1)). The
jury also found Garman personally inflicted great bodily injury on the victim
(§ 12022.7, subd. (a)). The court
thereafter found true two prison priors within the meaning of section 667.5,
subdivision (b); one prison prior within the meaning of section 667.5,
subdivision (a); and one strike prior within the meaning of section 667,
subdivisions (b) through (i).
The court
denied probation and sentenced Garman to a determinate term of 20 years in
prison. Garman filed a timely
Counsel has
filed a brief pursuant to
Cal.3d 436 (Wende) and
(Anders) raising a possible, but not
arguable issue. We offered Garman the
opportunity to file his own brief on appeal.
Garman has filed a letter brief which we will address below.
STATEMENT
OF FACTS
On October 20, 2011, 16-year-old Bryan
K. and Victoria D., a 16-year-old female friend, were at the home of their
mutual friend Travis C., sometime around 8:00
or 9:00 p.m. Fifteen-year-old Travis lived with his
mother, Diane C. Garman had been Diane's
boyfriend and had lived at the house for a couple of months. Garman had moved out of the house prior to
October 20.
The three
teenagers were walking around the back yard of the house when Diane told them
to leave. About the same time a man ran
up and struck Bryan on the eye with
an overhand strike, knocking him to the ground.
The man had a shiny object in his hand, which Bryan
thought was a gun. The man, who was
dressed in black and wearing a "hoodie," ran away. Bryan
suffered severe injury to his eye. The
medical testimony established Bryan
will never be able to see with that eye.
Witness
Olie Boughner was staying at the house in the front of the lot on the day of
the incident. He testified he had met
Garman at the house and that he knew Garman and his brothers.
Boughner
testified that he observed Garman run onto the lot and strike Bryan
in the face. Boughner was only two feet
away from Garman when he looked at Garman's face. It appeared that Garman had a small silver revolver
in his hand.
Garman ran
out of the house and down 11th Street. None of the teenagers was able to identify
the assailant.
Garman was
arrested by Escondido Police. Garman
told police he had been home in bed and that he did not know that address and
he had not been there.
Garman's
stepfather testified that when he went to bed at about 11:00 p.m. that night, Garman was already in bed.
DISCUSSION
I
As we have
previously noted, appellate counsel has filed a brief indicating he is unable
to identify any argument for reversal and asks this court to review the record
for error as mandated by Wende, supra,
25 Cal.3d 436. Pursuant to
738, the brief identifies one possible, but not arguable issue:
Whether the
inclusion of a requirement that the prosecutor prove serious bodily injury in
the jury instruction on mayhem constituted prejudicial error?
Appellate
counsel directs our attention to People
v. Santana (2013) 56 Cal.4th 999.
That case found that prosecutors did not have to prove serious bodily
injury in order to prove mayhem. Hence
the court concluded the additional burden placed on the prosecution in earlier
versions of the instruction did not cause prejudice to defendants. The same reasoning applies in this case. Thus, no reasonably arguable issue is
presented regarding this issue.
We have
reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738 and have not found any reasonably
arguable appellate issues. Competent
counsel has represented Garman on this appeal.
II
As we have
previously indicated, Garman has filed a letter brief in response to our
invitation. Unfortunately, the brief is
simply a listing of complaints about counsel, with no reference to anything in
the record on appeal. Garman claims he
is developmentally disabled and that counsel failed to read materials to
him. He states he wanted to testify but
was not allowed to do so by counsel.
Garman further states counsel was not competent in examining witnesses
and failed to call exculpatory witnesses.
Finally, Garman claims he is entitled to a new trial with an Americans
with Disabilities Act qualified attorney.
Garman does
not make any reference to the record nor does he indicate how counsel was
deficient or what exculpatory evidence might have been omitted. We have reviewed the entire record to
determine if there is any basis in this record for a reasonably arguable issue
regarding counsel's representation at trial.
Our review has not revealed the basis for any such issue.
It appears
that Garman's complaints are based on alleged acts or failures which are not
contained in the record on appeal. Thus
his remedy, if any, will have to be by way of a petition for writ of habeas
corpus filed in the trial court.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL,
P. J.
HALLER,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
