P. v. Gilchrist

Filed 1/30/07 P. v. Gilchrist CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Introduction

Reabert Charles Gilchrist (appellant) appeals from a final judgment disposing of all issues between the parties. Appellants counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this courts attention. No supplemental brief has been filed by appellant personally.

Although no issues have been briefed, appellants counsel has pointed out two issues as items in the record that might arguably support the appeal under Anders v. California (1967) 386 U.S. 738, 744. First, whether the trial court erred in giving a jury instruction on mutual combat self-defense (CALCRIM No. 3471) in light of the evidence at trial. Second, counsel has asked us to consider whether the trial court abused its sentencing discretion in denying appellants request to be placed on probation.

Procedural and Factual Background

An information was filed by the Napa County District Attorneys Office on September 15, 2005, charging appellant with one count of attempted murder of Hal Imperial on July 11, 2005 (Pen. Code,  187, subd. (a)[1]). It was also alleged as to this count that in the course of the attempt, appellant inflicted great bodily injury upon Mr. Imperial within the meaning of section 1203.075. A second count of assault with a firearm ( 245, subd. (a)(2)) was charged in the information, along with special firearm use allegations, including violations of sections 12022.53, subdivisions(b)-(d), 12022.5, subdivision (a)(1), and 12022.7, subdivision (a). At the arraignment on the information, appellant pleaded not guilty to all of the charges and allegation, and a jury trial was set for January 23, 2006.[2]

Several motions to continue the trial date were filed by appellant, and granted by the court. Trial actually commenced on May 8, and concluded on May 11, when the case was submitted to the jury for deliberation. The next day the jury delivered its verdict of not guilty as to the charge of attempted murder, and the lesser included offense of attempted voluntary manslaughter, and guilty as to the charge of assault with a firearm. The jury also found true special allegations that appellant personally used a firearm in the commission of the assault, in violation of section 12022.5, subdivision (a)(1), and that he inflicted great bodily injury on Mr. Imperial, in violation of section 12022.7, subdivision (a).

The evidence at trial showed that appellant and his neighbor, Mr. Imperial (also known as Howie), argued heatedly on the night of July 11, 2005. Alcohol may have played a role, although the evidence was disputed as to the amount each may have consumed earlier that evening, or whether either or both of them were intoxicated. Appellant went to the victims trailer, and while there he shot Mr. Imperial once in the stomach. The evidence was disputed at to what extent appellant was provoked or whether the assault was an act of self-defense, or the shooting accidental.[3] The jury, which was instructed as to several forms of self-defense, rejected the defense and concluded that appellant was guilty of an assault with a firearm.

Sentencing was scheduled for June 1. Appellants counsel filed a sentencing brief on May 31 acknowledging that probation could be granted only upon a finding that the case constituted an unusual one in which the interests of justice would best be served by the Court granting him probation. ( 462.) Counsel argued that the circumstances of this case met this exception, and probation should be granted.

A probation report was filed on June 1 recommending that probation be denied, and that appellant instead be committed to state prison. Counsel was provided an opportunity to address the issue of sentencing at the commencement of the hearing. The prosecutor urged the court to deny probation and to sentence appellant to an aggregate state prison term of 16 years (3-year mid-term for the assault conviction, a consecutive 3-year term for the great bodily injury enhancement, and a 10-year aggravated consecutive term for the firearm use enhancement). Appellants counsel again urged the court to find that unusual circumstances existed in this case such that the interests of justice would best be served by a grant of probation.

The court concluded that the facts of this case were not unusual within the meaning of the law providing for an exception otherwise requiring a state prison commitment. In considering sentencing factors, the court acknowledged that the record included both mitigating and aggravating factors, and ultimately decided to sentence appellant to the mid-term for the conviction and for each of the two enhancements found true by the jury, for an aggregate term of 10 years in state prison.

Conclusions Based Upon Independent Record Review

Upon our independent review of the record, we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.

The entire trial record has been reviewed, and we conclude that appellants conviction and true findings as to the enhancements were supported by substantial evidence. No potentially prejudicial errors occurred during the course of the trial.

As to the instruction relating to the defense of mutual combat, that instruction inured to the benefit of the defense, and was justifiably given based on the evidence presented at trial. In fact, an instruction on mutual combat was requested by defense counsel, and the defense argued on appellants behalf during defense counsels closing argument.

We also discern no error in the sentencing. The refusal to grant probation and the sentencing choices made by the trial court were consistent with applicable law, supported by substantial evidence, and were well within the discretion of the trial court. The restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.

DISPOSITION

The judgment is affirmed.

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Ruvolo, P. J.

We concur:

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Sepulveda, J.

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Rivera, J.

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[1] All subsequent undesignated statutory references are to the Penal Code.

[2] All further dates refer to the calendar year 2006 unless otherwise indicated.

[3] Appellants defense was that he slapped the victim in self-defense, but his firearm discharged accidentally.