Filed 12/20/17 P. v. Solis CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed.

John Jose Solis, in pro. per.; and Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted John Jose Solis of one count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); one count of battery with serious bodily injury (id., § 243, subd. (d)); and as to both counts, that Solis personally inflicted great bodily injury on the victim (id., §§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). In a bifurcated trial, the jury further found that Solis had suffered a conviction for personally assaulting another by means of force likely to produce great bodily injury in 1999, which is a serious felony and strike offense (id., §§ 245, subd. (a), 12022.7, subd. (a)) (prior strike); served a prison term and failed to remain free of prison custody for five years after he was released; suffered a conviction for possessing a controlled substance in 2014 (Health & Saf. Code, § 11378); and suffered a new felony conviction within five years after his release from prison (Pen. Code, §§ 667, subds. (a)(1), (b)-(i), 667.5, subd. (b), 668, 1170.12, 1192.7, subd. (c), 1203, subd. (e)(4)). The trial court denied Solis's motion to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and sentenced him to state prison for a total of 15 years.

Appointed appellate counsel has filed a brief presenting no argument for reversal, but requesting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Solis filed his own supplemental brief on appeal, which we will discuss below. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Solis was a regular customer at a small market, typically going in and out of the market several times a day. The cashier and other employees knew him by the name of J.J.

One day in November 2016, Damien G. went to the market to buy something to eat and drink. While waiting in the cash register line behind Solis, Damien heard Solis arguing with the female cashier. In a friendly manner, Damien attempted to calm the parties down. Solis glared at Damien and accused him of being disrespectful. The cashier instructed Solis to leave, which he did, and she completed Damien's transaction. By that time, another customer, Alfred Garza, was in line behind Damien.

Holding his food and drink, Damien left the market and headed toward the parking lot where he had parked his car. Solis and two of his friends approached and surrounded Damien. Continuously asserting that Damien had "disrespected" him, Solis punched Damien in the face; Damien tried to defend himself by punching back. However, one of Solis's heavyset friends put Damien in a choke hold from behind, causing him to fall to the ground. While Damien was on the ground, Solis and his friends kicked and stomped on his head, and Damien crawled into a fetal position. He lost consciousness.

Garza, who had exited the market after Damien and headed to the same parking lot, observed Damien getting beaten by Solis and his friends. When there was a break in the beating, Garza called out "stop" to the attackers and attempted to aid Damien. Solis's group scattered. Garza thought Damien was dead because he had been convulsing and then appeared to stop breathing. Damien regained consciousness, and Garza called 911. Damien was transported to the hospital; he suffered a fractured nose, multiple lacerations on his face that required suturing, a swollen eye, and bruising.

Police officers learned about what had transpired from Damien, Garza, and the cashier. Solis was arrested and charged with assault and battery involving great and/or serious bodily injury.

On the first day of jury trial, Solis requested a continuance in order to spend time with his sick mother and so his counsel could investigate a potential witness. Counsel had already been assigned to the case for over three months. The court found no good cause for a continuance and denied Solis's request.

At trial, the jury heard testimony from Damien, Garza, the cashier, and various police officers, and learned that it had taken Damien six or seven weeks to fully recover from his injuries. Solis's primary defense was that he had been mistakenly identified as one of Damien's attackers and was somewhere else when the attack occurred. Alternatively, Solis argued self-defense. The jury found him guilty of all charges, and the court remanded him into custody. In a bifurcated proceeding, the jury found true all allegations regarding Solis's prior convictions and prison priors.

Prior to sentencing, Solis filed a motion to strike his prior strike conviction allegation under Romero, which the People opposed. The court considered the parties' arguments and the probation department's report, denied Solis's Romero motion, and sentenced him to a 15-year prison term. The court found that striking Solis's prior strike allegation would not serve the interest of justice based on a consideration of his background, his prior convictions, and his inability to conform his behavior to rules and regulations.

Solis filed a timely appeal.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but requested that we review the record for error in accordance with Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, counsel listed two possible issues for our consideration:

1. "Does sufficient evidence exist to prove Mr. Solis committed assault with the personal infliction of great bodily harm?"

2. "Did the court properly deny Mr. Solis's Romero motion to strike his previous strike?"

A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issues raised by appointed appellate counsel, has disclosed no reasonably arguable appellate issue.

We have separately considered Solis's supplemental brief, in which he complains that his trial counsel was generally ineffective for allegedly failing to investigate exculpatory evidence consisting of close-up photographs of Solis. Solis also complains the trial court should have granted him a continuance, should not have remanded him into custody prior to sentencing, and erred in denying his Romero motion to strike.

Regarding his claim of ineffective counsel, Solis improperly raises matters that are outside of the record, and there is nothing in the record to suggest his trial counsel was ineffective. In addition, the court acted well within its discretion in denying Solis's request for a continuance based on a lack of good cause. Regarding his custodial status and Romero motion, the record discloses that Solis is a recidivist felon and drug addict with an extensive criminal history. The court acted well within its discretion in remanding him to custody prior to sentencing and denying his Romero motion. On this record, Solis's supplemental brief does not raise any arguable issues.

Competent counsel has represented Solis on appeal.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.