Opinion
D077249
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. WALI JABBAR, Defendant and Appellant.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD282099) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Affirmed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted Wali Jabbar of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and battery with serious bodily injury (§ 243, subd. (d)). The court sentenced Jabbar to a determinate term of four years in prison.
All further statutory references are to the Penal Code. --------
Jabbar filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Jabbar the opportunity to file his own brief on appeal, but he has not responded.
FACTS AND PROCEDURAL BACKGROUND
The trial in this case occurred in December 2019. In August 2019, the court declared a doubt as to Jabbar's competency and suspended criminal proceedings. After an evaluation was completed, the court reinstated criminal proceedings in October 2019.
While the case was pending trial, Jabbar brought three separate motions to replace appointed counsel (People v. Marsden (1970) 2 Cal.3d 118). All three motions were denied following hearings. Shortly after completing the third hearing, Jabbar announced he still wanted to replace counsel. The trial court said it had already ruled on the issue and denied the request without further closed proceeding.
The facts of the offense are well summarized in the appellant's opening brief. We will include them here for background information.
This case concerned an incident at a 7-Eleven in downtown San Diego. At around 6:15 a.m. on May 24, 2019, J. Perez was working at the 7-Eleven when he saw Jabbar—who Perez knew from previous interactions—enter the store and pour a cup of freshly brewed coffee. Based on prior interactions with Jabbar, Perez did not believe that Jabbar was going to pay for the coffee, and he told Jabbar to put it down. In response, Jabbar threw the cup of coffee at Perez's face, causing second degree burns.
The People called four witnesses. First, San Diego Police Officer Evan Hughes testified primarily about the injuries suffered by the victim, Perez. Officer Hughes went to the University of California San Diego hospital on the morning of May 24, 2019, in response to a report that a patient had been admitted after being scalded with hot liquid. There, he interviewed the victim, Perez. Perez told Officer Hughes that he was working at a 7-Eleven in downtown San Diego, where a man threw hot coffee on him after attempting to steal it. Officer Hughes testified that he observed and photographed Perez's injuries. The People introduced several photographs of Perez's injuries taken by Officer Hughes.
Perez testified that he was working at 7-Eleven on Fifth and Broadway in downtown San Diego at around 6:15 a.m. on May 24, 2019. Perez was behind the register when he noticed Jabbar, who he had seen many times before, come into the store and walk "towards the coffee urns that I was freshly brewing." Perez testified that the coffee reaches temperatures of about 200 degrees while it is brewing. Jabbar poured himself a cup of coffee, and walked toward the line at the register, but Perez "kn[e]w he wasn't going to pay for it, and I told him to just put it down." In response, Jabbar "broke the line," approached the register, and aggressively "asked me, 'What did you say? What did you say?' " before throwing the cup of coffee on Perez. Jabbar aimed at Perez's face, but Perez turned and the coffee "wound up on my shoulder, face, and neck." Jabbar then said, "Fuck you," and left the store. The People introduced surveillance footage of the incident. Perez testified that it took a few seconds after the coffee hit him before he felt anything, and then it started to burn badly enough that he decided to call the police. Perez testified that within 5 or 10 minutes, he was in serious pain—a level of 10 on a scale of one to 10. The fire department was first to respond to the 911 call, and then the police. Perez was taken in an ambulance to University of California San Diego Hospital in Hillcrest. Perez testified about his treatment and recovery, including that the injury impaired his hearing for about a week and a half ; that he had bandages for about two and a half weeks ; that he could not "come to work or wear a shirt, really" for several weeks ; and that he still had some scars at the time of the trial.
Perez testified that he identified Jabbar in a police photo lineup a few weeks after the incident, on June 5, 2019.
San Diego Police Detective Robert Carlson was assigned to investigate Perez's assault. Detective Carlson testified that he identified Jabbar as a possible suspect based on surveillance footage of the incident and input from another officer who had had prior contacts with Jabbar. After identifying Jabbar as a suspect, Detective Carlson conducted a sequential photo lineup with Perez, who identified Jabbar as the person who had thrown coffee on him.
Finally, Rungfa Tangtumnu, a nurse practitioner who treated Perez, testified about his injuries. Tangtumnu evaluated Perez on May 30, 2019, a few days after the assault. She diagnosed Perez's burns as second-degree burns, on a scale of one to four, with four being the worst.
The defense called no witnesses.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal:
1. Did the trial court commit prejudicial error by not ordering a fourth Marsden hearing on December 17, 2019;
2. Did the trial court commit prejudicial error by not referring Jabbar for a second competency evaluation pursuant to section 1368; and
3. Did the trial court commit prejudicial error by instructing the jury that an eyewitness's level of certainty can be considered when evaluating the reliability of the identification?
We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Jabbar on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.