Opinion
C082703
05-03-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK JOSEPH EDMONDS, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62-141384)
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm defendant's conviction.
An amended information filed May 25, 2016, charged defendant Mark Joseph Edmonds with four counts of assault with a deadly weapon (counts one through four; Pen. Code, § 245, subd. (a)(1)) and alleged he served three prior prison terms (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code. --------
A jury convicted defendant on count two, but could not reach a verdict on the other three counts, as to which the trial court declared a mistrial. Defendant waived his right to jury trial on the priors and admitted them.
The People thereafter agreed to dismiss counts one, three, and four with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.)
At sentencing on August 8, 2016, the trial court imposed a total state prison term of seven years (four years, the upper term, on count two, plus three consecutive one-year terms for the priors). The court awarded defendant 541 days of presentence custody credit (271 actual days and 270 conduct days).
The trial court imposed a $300 restitution fine (§ 1202.4, subd. (b)), a suspended parole revocation restitution fine in the same amount (§ 1202.45), a $40 court operations assessment (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). The court also imposed a $350 presentence investigation report fee (§ 1203.1b) and a $108 incarceration fee (§ 1203.1c), without stating their statutory basis.
On December 14, 2016, appellate counsel requested that the trial court strike the $108 incarceration fee on the ground that section 1203.1c authorizes that fee only when local jail time is ordered as a condition of probation. On January 17, 2017, the trial court issued an amended abstract of judgment striking the incarceration fee.
The trial evidence showed:
On October 9, 2015, defendant, a 55-year-old transient, had a series of encounters with people, beginning at the Gold Country Fairgrounds in Auburn, and continuing in a nearby park, which gave rise to the four counts charged against him.
At approximately 5:30 p.m. on October 9, 2015, David Scott went to Fast Fridays, a motorcycle speedway located within the Gold Country Fairgrounds in Auburn, to take part in a scheduled race. As he drove into the back entrance to the speedway, in an area that children use as a bicycle track, he saw defendant yelling and waving his arms at two 10- to 12-year-old boys on bikes, apparently harassing them. Scott stopped his car to investigate the situation. Defendant headed toward Scott, yelling, "Hey, mother-fucker, do you think—you have a problem with me? You think I'm a pervert?" Then he threatened to "rip [Scott] out of [his] car and take care of [him]." Scott drove toward the pit entry, where a security guard was stationed; defendant followed him, then changed direction. Getting out of his vehicle, Scott told the security guard to call the Auburn police immediately. Scott looked back and saw defendant heading up some nearby hills. Scott then saw David J., the owner of Fast Fridays and the alleged victim in count one, approaching defendant on a dirt bike, along with a security guard on foot.
After catching up to defendant, who insulted him profanely, David J. told him repeatedly that he had to leave. Defendant started toward the nearby railroad tracks, but then sat down. David J. approached defendant and again insisted he leave the area; defendant became more defiant, then pulled out a folding knife and waved it at him. When David J. did not back off, defendant picked up a large rock and threw it at him; David J. either jumped or fell backward off his motorcycle to dodge the rock. He told defendant the cops were coming, and, at that point, they arrived. Defendant took off and left the area.
Rick C., his wife Christie C., and their friend Laura M., the alleged victims in counts two through four, were in Railhead Park near the fairgrounds in the early evening of October 9, 2016, with their dogs. They saw defendant enter the park through a gate and approach them saying, "I'm coming through this fucking park and there's nothing you can do about it." Rick C. put the two women behind him and wrapped a towel around his hand and arm to protect himself. As defendant came toward them, he pulled a folding knife from its sheath, opened it, and held it out. He said, "I've been to prison, and I don't care." He was within four feet of Rick C. Rick C. told him to move on; he paused and then did so, walking across empty soccer fields. At that point a police car appeared in the park. Rick C. approached the car and warned the officer that defendant had a knife.
Auburn Police Officer Joe Almeida detained and searched defendant and took a knife from a sheath on his right hip. Auburn Police Officer Mike Metzner, who had previously responded to the situation at the fairgrounds and asked Officer Almeida go to the park to contact defendant, joined Officer Almeida. After defendant's arrest, Officer Metzner interviewed those who had come in contact with defendant earlier.
Defendant did not testify or put on evidence.
Appellate counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. 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.
Defendant filed a supplemental brief listing what he calls "the facts and issues I think should be raised on my behalf." None of these points amounts to an articulated claim of trial court error or resulting prejudice.
Defendant complains of inconsistencies in testimony—including testimony going to count one, on which he obtained a mistrial, which defeats any possible claim of prejudice. In any event, it is for the jury to weigh the evidence, including any inconsistencies in testimony, and we do not reweigh it on appeal. (See, e.g., People v. Johnson (1980) 26 Cal.3d 557, 578.)
Defendant questions why certain witnesses supposedly favorable to the prosecution were not called, but the failure to call witnesses who would have been adverse to him cannot be prejudicial. If defendant means to insinuate that those witnesses' testimony was suppressed because it would actually have helped him, he cites nothing in the record to support that speculation.
Without citing any record evidence, defendant asserts, if the officers had been wearing body cameras, those cameras would have proved somehow that the assault charged in count two did not happen—even though there is no evidence any officers were at the park when that assault took place. We do not consider speculation asserted without record support. For the same reason, we disregard defendant's claim Officer Metzner presumed defendant guilty because he is known to live a "homeless life style" and to drink.
Defendant cites a trial exhibit that is not in the record on appeal (a map shown to the jury by overhead projector), presumably to support his contention that the version of events given by testifying witnesses was false. It was defendant's responsibility to include that evidence in the appellate record if he thought it helpful to him. We cannot consider anything outside the record.
For the most part, defendant's brief consists of bare assertions he is innocent of all crimes charged and none of the events occurred as the prosecution witnesses said they did. But, if defendant wanted to get his version of events before the jury, he could have testified to it. Since he did not, there is no record support for his story and we cannot consider it.
In short, defendant has shown no grounds for reversal.
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: RAYE, P. J. MURRAY, J.