Opinion
D073420
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. FREDRICK CATO, Defendant and Appellant.
Tracy A. Rogers, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN365183) APPEAL from an order of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found Fredrick Cato guilty of assault by means likely to produce great bodily injury and found true the allegation that he personally inflicted great bodily injury upon the victim. (Pen. Code, §§ 245, subd. (a)(4), 12022.7, subd. (a) & 1192.7, subd. (c)(8), count 1.) The jury also convicted him of battery with serious bodily injury with an infliction of great bodily injury. (§§ 243, subd. (d), 1192.7, subd. (c)(8), count 2.)
Undesignated statutory references are to the Penal Code. --------
After Cato waived a jury trial, the court found true two prior strike conviction allegations (§§ 667, subd. (b)-(i), 1170.12 & 668), as well as two serious felony priors (§ 667, subd. (a)(1)), and two prison priors (§ 667.5, subd. (b)). The court denied Cato's request to strike a prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and found him statutorily ineligible for probation. The court sentenced Cato to 25 years to life on count 1, plus a consecutive sentence of three years for the great bodily injury enhancement. The court stayed the five-year terms for each of the two serious felony priors pursuant to section 667, subdivision (a)(1), and struck the sentence for the two prison priors. The court imposed a sentence of 25 years to life on count 2, but stayed the execution pursuant to section 654.
FACTUAL BACKGROUND
On an evening in September 2016, a female friend drove Cato to a gas station store in San Marcos to purchase beer. Cato was extremely intoxicated. The woman selected beers and took them to the clerk, the victim. The victim told the woman that she was beautiful. After paying for the beer, the woman returned to the car and told Cato, " '[A]t least someone thinks I'm beautiful.' " Cato left the car and entered the gas station store. When he returned the woman asked him what happened inside the store. Cato told her that he did not remember.
The prosecutor played video surveillance of the incident between Cato and the victim for the jury. The recording depicted the victim behind the cash register when the woman entered the store and purchased beer. The recording also showed Cato attacking the victim and kicking him in the head. The parties stipulated that the victim then worked another 40 to 45 minutes before a customer called 911 and the paramedics responded. A sheriff's deputy also responded to the scene. The deputy confirmed that the victim had "said she was a beautiful lady."
The victim testified that he did not remember speaking to the woman at the cash register. He remembered getting hit in the head, but could remember nothing after that event. The next thing he remembered was waking up in the hospital. As a result of the attack, the victim suffers from tinnitus, numbness, pain and dizziness. He is unable to work or drive a car.
The doctor who treated the victim testified that the victim had signs of head trauma, suffered a hematoma and brain hemorrhage, and required four staples to close a four centimeter laceration on the back of his head. The doctor opined that the hemorrhage was the result of a traumatic head injury. He also stated that head trauma can cause memory loss
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has identified the following issue that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744 (Anders))—whether the court abused its discretion in failing to strike Cato's prior strike conviction under Romero, supra, 13 Cal.4th 497.
In denying the Romero motion, the trial court noted the violent nature of the current offense and that the "Three Strikes" law existed "to punish repeat offenders who have repeatedly committed violent offenses." The court reviewed Cato's criminal history and remarked that Cato has been violent since 2005.
We review the denial of a motion to strike a prior conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Our review of the record discloses no reasonably arguable appellate issue with respect to the court's denial of Cato's Romero motion to strike his 2005 prior strike conviction. In 2005 Cato suffered a conviction for corporal injury to a significant other after he pushed his girlfriend against a wall causing her to suffer a cut on her forearm. Cato suffered additional convictions for corporal injury to a significant other in 2007 and 2010. A 2005 robbery conviction involved Cato hitting the victim three times in the face. Cato suffered an additional conviction for battery with serious injury in 2010. Cato's criminal history shows that he does not fall outside the spirit of the Three Strikes law. (Carmony, at p. 377.)
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issues. Cato has been adequately represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. AARON, J.