Opinion
C089212
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY EDWARD LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18FE014059)
Appointed counsel for defendant Timothy Edward Lewis has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
BACKGROUND
In July 2018, defendant argued with his ex-wife and her new husband over the phone, and then drove to the couple's home about 20 minutes later.
After defendant and his ex-wife's new husband briefly fought in front of the home, defendant retrieved a "long metal stick" from his car, prompting the husband to retreat inside. The husband testified at trial that as defendant approached the house, he threatened to kill him, kicked the closed front door and "smashe[d] the window" next to the door. The husband further testified defendant inserted his hand through the window in an attempt to "reach for the door and open it" from the inside.
Defendant's ex-wife called 911 and when police detained defendant, they found pepper spray and a 14-inch long metal pipe in defendant's car, and metal knuckles in defendant's pocket.
In closing argument at defendant's jury trial, defense counsel conceded there was enough evidence to find defendant guilty of misdemeanor vandalism (Pen. Code, § 594, subd. (a); [count three]) and felony possession of metal knuckles (§ 21810; [count four]), but not for first-degree residential burglary (§ 459; [count one]), making criminal threats (§ 422; [count two]), or unlawful possession of tear gas (having been previously convicted of a felony) (§ 22810, subd. (a); [count five]).
Undesignated statutory references are to the Penal Code. --------
The jury found defendant guilty on the vandalism and metal knuckles counts, and acquitted defendant on the other charges.
Defendant waived a jury trial on the existence of two prior strike convictions. The trial court found the prior strike allegations true, but struck them pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court also struck the prior serious felony convictions for purposes of section 667, subdivision (a)'s, five-year enhancement. (See People v. Garcia (2018) 28 Cal.App.5th 961, 971.)
The trial court sentenced defendant to serve two years for the metal knuckles offense (the middle term), and a concurrent term of six months for the misdemeanor vandalism offense.
The trial court awarded defendant 473 days of custody credit and imposed the following costs: a $300 restitution fine (§ 1202.4) for the possession of metal knuckles, a combined $80 court operations assessment fee (§ 1465.8) for the two convictions, and a combined $60 court facility fee (Gov. Code, § 70373) for the two convictions. The trial court also imposed but stayed a $150 restitution fine (§ 1202.4) in connection with the vandalism offense.
DISCUSSION
Appointed counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J.
We concur:
/s/_________
BLEASE, Acting P. J.
/s/_________
MURRAY, J.