Filed 10/17/17 P. v. Walker CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On June 3, 2016, defendant and appellant Trason Andreas Walker pled guilty to assault by means likely to produce great bodily injury under Penal Code[1] section 245, subdivision (a)(4), with an enhancement for personal infliction of great bodily injury pursuant to section 12022.7, subdivision (a). On the same day, defendant also admitted (1) having a prior strike conviction pursuant to sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1); and (2) having served one prior term in prison under section 667.5, subdivision (b). On July 6, 2016, defendant was allowed to withdraw his guilty plea and his admissions of the prior strike conviction and prison term.

On February 14, 2017, the people filed a first amended information; it charged defendant with assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(4) (count 1). The information also alleged that defendant had (1) one strike conviction pursuant to sections 667, subdivisions (c) and (3)(1), and 1170.12, subdivision (c)(1); (2) a prior serious felony conviction pursuant to section 667, subdivision (a); and (3) served two prior terms in prison pursuant to section 667.5, subdivision (b). The court granted the prosecutor’s motion filed on February 24, 2017, to withdraw the allegation of a prior serous felony conviction pursuant to section 667, subdivision (a).

On February 14, 2017, the defendant’s jury trial began. On February 17, 2017, the jury found defendant guilty of count 1. On February 24, 2017, defendant admitted the prior strike conviction and the allegations that he served two prior prison terms. And, as provided ante, the trial court granted the prosecutor’s motion to withdraw the allegation of a prior serious felony conviction pursuant to section 667, subdivision (a).

On April 14, 2017, the trial court sentenced defendant to eight years in prison, as follows: The aggravated term of three years for count 1, doubled under the “Three Strikes” law (§§ 667, subds. (c) and (e)(1), 1170.12, subd. (c)(1)), for a total of six years. For the two prior prison terms, the court sentenced defendant to an additional term of one year for each prior prison term.

On April 17, 2017, defendant filed a timely notice of appeal.

B. FACTUAL HISTORY

1. PROSECUTION’S CASE

Defendant hit his mother (the victim) early on May 9, 2016, after she attempted to wake him up to move a bicycle out of the driveway. The interaction started in the backyard where defendant was sleeping in a chair. The victim hit or tapped defendant and told him to “get up and move the bike.” She did not punch or pull him. He went in the house and sat on the couch. She followed him, pulled on his shirt twice, and told him to move the bike. Defendant stood up and hit the victim; she believed defendant punched her, but she did not see whether or not he made a fist. Her tooth “went into” her lip.

The victim called 911 because her lip was “busted”; she was bleeding. The prosecutor played a recording of the 911 call for the jury. The prosecutor also displayed photographs of the victim’s injured lip. Paramedics arrived and took the victim to the hospital, where she received one or more stitches to her lip. By the time of trial, her lip had “not grown all the way back to where it should be,” but she had full use of her lips.

The victim told the truth when she spoke to the police on the date of the incident. When she testified at the preliminary hearing, she testified differently because she was trying to protect her son. The victim told the truth at trial—she admitted she did not tell the truth about everything when she testified at the preliminary hearing even though she was under oath. At trial, she testified that she believed that she was testifying truthfully on both occasions.

On May 9, 2016, the victim told Riverside Police Department Officer Jason Joseph that defendant hit her. The victim told Officer Joseph “she asked [defendant] to move a bicycle and he became angry and punched her in the face.” She said defendant used a fist. The victim was “upset, bothered, angry,” and her lip was bleeding. She did not tell Officer Joseph that she “was pulling” on defendant when she asked him to move the bicycle.

Officer Joseph woke defendant up by calling his name. The officer handcuffed defendant then conducted an interview. The interview was recorded; the prosecutor played the recording for the jury. Defendant told the officer that his mother fell.

2. DEFENSE

At trial, defendant testified on his own behalf. The morning of May 9, 2016, around 2:00 or 3:00 a.m., defendant was outside the house, sitting in a chair. He had been awake for four or five days, and “dozed off” while working on a bicycle. Someone told him to get up and go into the house. Defendant went back to working on the bicycle, but dozed off again. Someone told him to get up, so he got up and went into the house. He walked toward the couch and “blacked out” as he turned to sit down. Someone then shook him by his right arm; he didn’t move. He did not wake up, but swung his right arm backward. He never got up from the couch. When he did wake up, he saw the victim walking away and assumed that she had fallen down when she was shaking him. He heard someone on the telephone and did not pay attention. Instead, he went back to sleep. Defendant acknowledged that he told Officer Joseph the victim pushed him and fell. He thought the officer knew that he had been sleeping earlier because he was sleeping when the officer arrived.

Defendant admitted that he had seven prior convictions. He had two second-degree burglary convictions, one theft conviction, one receiving stolen property conviction, two assault with likelihood to cause great bodily injury convictions, and one vandalism conviction. Defendant testified that he had never hit the victim, his mother; threatened to do so; or raised his hand to her.

DISCUSSION

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

SLOUGH

J.