Filed 8/28/18 P. v. James CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Terry James appeals from his conviction and sentence following a jury trial on one count of battery inflicting serious bodily injury and two no contest pleas to one count of elder abuse and one count of assault likely to produce great bodily injury. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged in a three-count information with elder abuse in violation of Penal Code section 368, subdivision (b) (count one),^[1] assault likely to produce great bodily injury in violation of section 245, subdivision (a)(4) (count two), and battery inflicting serious bodily injury in violation of section 243, subdivision (d) (count three). The information included a sentencing enhancement pursuant to section 12022.7 for inflicting great bodily injury while committing a felony.

The victim, 76-year-old Romeo Arceo, was pulling out of a parking space at the Cash One in Vallejo when he hit appellant’s car. Appellant got out of his car and began yelling at Arceo. Arceo requested that they exchange information. Appellant refused to exchange information and demanded that Arceo give him money to fix his car.

Appellant got into his car and Arceo began to walk away, then appellant came up behind Arceo and punched him in the back of head/neck. Arceo fell to the ground. While Arceo was on the ground, appellant drove away in his car but a bystander recorded his license plate number and gave it to Arceo.

Arceo was taken to the hospital by ambulance. He suffered multiple fractures to his shoulder as well as a bruise on his chest and a scraped knee.

Vallejo Police Department Officer William Badour searched the license plate in the Department of Motor Vehicles database and found appellant was the registered owner. Officer Badour went to appellant’s home and asked if he knew why he was there and appellant responded it was due to the accident the previous day. Appellant stated he struck Arceo because Arceo was making him mad.

Appellant went to trial and the jury returned a verdict of guilty on count three but could not reach a verdict on counts one and two. The parties then entered into a plea agreement where appellant pleaded no contest to counts one and two. On the prosecution’s motion, the court dismissed the section 12022.7 sentencing enhancement.

The court sentenced appellant to the middle term of three years on count one, three years on count two, and three years on count three to run concurrently.

III.

DISCUSSION

1. No Issues Under Wende

Neither appellant nor appellant’s counsel has identified any issue for our review on appeal. Upon our own independent review of the record, we agree no actual issue exists. (People v. Wende, supra, 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738, 744.) Appellant was given his constitutional right to a jury trial and convicted on count three. Appellant’s was represented by counsel who cross‑examined each of the prosecution’s witnesses. He then elected to pursue no contest pleas for counts one and two. He was advised of his constitutional rights prior to the entry of his plea, as well as the consequences of his plea. The court found the plea was free and voluntary, and that there was a factual basis for it. No error appears in the entry of his plea or sentencing. Appellant was represented by counsel at all times. Thus, there are no meritorious issues to be argued on direct appeal.

IV.

DISPOSITION

The judgment is affirmed.

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SMITH, J.^*

We concur:

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STREETER, Acting P. J.

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REARDON, J.

^* Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.