Opinion
D076126
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE GOMEZ-OSUNA, Defendant and Appellant.
Andrea S. Bitar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD279350) APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Jose Gomez-Osuna was charged with a number of misdemeanor and felony offenses arising from his reckless driving to evade police. Prior to trial, he pleaded guilty to four misdemeanors: two counts of Vehicle Code section 20002, subdivision (a), hit and run driving; section 12500, subdivision (a), driving without a license; and Penal Code section 148, subdivision (a)(1), resisting an officer.
All further statutory references are to the Vehicle Code unless otherwise specified. --------
Once trial commenced the court permitted the prosecution to file another felony count. Thereafter the jury convicted Gomez-Osuna of felony evading a police officer causing serious bodily injury (Veh. Code, § 2800.3, subd. (a)); felony evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) and Penal Code section 12022.7, subdivision (a).
After the verdict, Gomez-Osuna requested appointment of new counsel to review the case to determine if trial counsel had been ineffective in failing to introduce the victim's medical records. The court denied the request noting defense counsel cross-examined the treating doctor with the medical records, thus there was no potential prejudice to Gomez-Osuna.
Gomez-Osuna was sentenced to a determinate term of 10 years in prison. The court imposed the minimum restitution fine of $300, but stayed it finding he lacked the ability to pay. The court declined to impose any fees or assessments.
Gomez-Osuna 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 this court to review the record for error as mandated by Wende. We offered Gomez-Osuna the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
In the evening of November 13, 2018, a police officer attempted to make a traffic stop of the vehicle Gomez-Osuna was driving. Gomez-Osuna attempted to escape by driving at high speeds through city streets with police following with lights and sirens activated. Gomez-Osuna eventually drove onto Interstate 8. Gomez-Osuna then merged onto Interstate 5 where he struck the victim's vehicle.
Gomez-Osuna jumped out of his vehicle and ran across the freeway but was ultimately tackled by a police officer and taken into custody.
The victim sustained a number of injuries and received medical treatment.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error as mandated by Wende. To assist the court in its review of the record and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified four possible issues that she considered in evaluating the potential merits of this appeal:
1. Whether the trial court erred in permitting the prosecution to file an amended information adding Count 2, a violation of section 2800.2, subdivision (a);
2. Whether the court erred in declining to instruct the jury that section 2800.1, ( a misdemeanor), is a lesser included offense of count 2;
3. Whether the court erred in declining to appoint independent defense counsel to evaluate the performance of trial counsel; and
4. Whether the court abused its discretion in imposing the upper term for both felony counts where the probation report recommended the middle term for each count.
We have reviewed the record for error as mandated by Wende and Anders. We have not identified any arguable issues for reversal on appeal. Competent counsel has represented Gomez-Osuna in this case.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.