Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 08NF1674, John Conley, Judge.
Alan Dean Fischer, in pro. per.; and James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
FYBEL, J.
1. Introduction
Alan Dean Fischer filed a notice of appeal after a jury found him guilty of committing one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) [count 1]) and one count of simple battery (id., § 242), as a lesser included offense to count 2. The jury found true the allegation Fischer inflicted great bodily injury on the victim within the meaning of Penal Code section 12202.7, subdivision (a). After Fischer waived his right to a jury trial on the prior conviction allegation, the trial court found Fischer had suffered a prior conviction on March 27, 1980, for violating Penal Code section 211.
The trial court denied Fischer’s motion to reduce the assault conviction to a misdemeanor and to grant probation, and granted Fischer’s motion to strike the prior serious felony strike allegation for purposes of sentencing. The court denied Fischer’s request for probation and sentenced Fischer to a term of 11 years in prison, calculated as follows: three years (midterm) on count 1; three years for the great bodily injury enhancement; and five years as the mandatory enhancement for the prior serious felony conviction.
We appointed counsel to represent Fischer. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel suggested we consider three issues, which we address in section 3.
We have examined the entire record and counsel’s Wende/Anders brief. We looked for issues others than those raised by counsel, but after considering the entire record we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) Fischer was given 30 days to file written arguments in his own behalf. He filed a supplemental brief. We have reviewed and considered Fischer’s supplemental brief but find nothing in it to suggest a reasonably arguable issue. We therefore affirm.
2. Facts
Fischer and Ronald Nailor shared a room at a motel in Buena Park. In the evening of May 17, 2008, Fischer said things to Nailor that prompted him to throw an ashtray at Fischer. He jumped at Nailor and hit him on the side of the face with an unidentified object. The blow landed on Nailor’s right eye and forehead. One or two more blows rendered Nailor nearly unconscious. He remembered being dragged on the floor, but his next memory was awaking in the ambulance.
Buena Park Police Officer Connor Lee was dispatched to the motel, where he found Nailor lying on the ground in the motel parking lot with severe facial injuries. Lee found both Nailor and Fischer to be intoxicated. Fischer, who appeared upset, told Lee that he and Nailor had an argument during which Nailor lost his balance and hit his face on the ground.
Nailor was taken to a hospital, where he stayed until May 22, 2008. He underwent sinus surgery and his wound was stapled from the sideburn on one side of the face over his head to the sideburn on the other side. He has an indentation on his right temple that was not there before Fischer struck him.
Lee arrested Fischer and took him to the Buena Park police station. In the booking cell at the station, Lee read Fischer his rights pursuant to Mirandav. Arizona (1966) 384 U.S. 436 (Miranda), including the right to remain silent and the right to have an attorney present before and during questioning. When asked if he understood his rights, Fischer answered, “[y]es.” Lee asked Fischer what happened in the motel room. Fischer said he and Nailor got into an argument after Nailor called him an “anti[-]Christ child molester.” When Fischer called Nailor the same thing, Nailor grabbed an ashtray and swung it toward Fischer. He blocked the ashtray, and grabbed Nailor in a carotid choke hold until he fainted. Fischer said he then stood on top of Nailor and punched him about a dozen times in the face with a cell phone. After tossing the cell phone onto the bed, Fischer continued punching Nailor in the face, beating him “senselessly.” Fischer told Lee he knew he should stop, but could not because of his rage.
After he had finished beating Nailor, Fischer wrapped his arms around his neck and lifted him to his feet. Fischer opened the motel room door and kicked Nailor out the door and into the parking lot. He lost his balance and fell on the ground face first so hard that Fischer said his face “bounced off of the ground.”
3. Analysis of Suggested Issues in Counsel’s Wende/Anders Brief
Appointed counsel suggests three potential issues: (1) whether the trial court erred by denying Fischer’s motion to exclude pretrial statements on the ground Fischer was not given advisement of his rights pursuant to Miranda, supra, 384 U.S. 436; (2) whether substantial evidence supported a finding that Fischer used means of force likely to produce great bodily injury; and (3) whether the trial court erred by denying Fischer’s motion to reduce count 1 to a misdemeanor and to grant probation.
As to the first issue, we find no error. Lee testified he advised Fischer of his rights pursuant to Miranda before questioning him, and Fischer acknowledged he understood those rights. The evidence was sufficient to establish the Miranda warnings were adequate.
As to the second issue, the evidence was sufficient to support a finding Fischer used means of force likely to produce great bodily injury. Fischer held Nailor in a carotid choke hold until he fainted, stood over him and beat him senselessly, then picked him up and kicked him out the motel room door, causing him to fall and strike the ground face first. Nailor was hospitalized for a week, underwent sinus surgery, had a wound requiring staples from one ear to the other, and had an indentation in his temple.
As to the third issue, the determination whether to reduce an offense from a felony to a misdemeanor pursuant to Penal Code section 17, subdivision (b) lies within the trial court’s discretion (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 976 977), as is the decision whether to grant probation (People v. Stuart (2007) 156 Cal.App.4th 165, 178 179). Considering the record before it, the trial court did not abuse its discretion in denying Fischer’s motion to reduce the felony conviction to a misdemeanor and to grant probation.
4. Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J. BEDSWORTH, J.