Opinion
E083760
02-26-2025
THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN HOWARD KIGER, Defendant and Appellant.
Johnathan Howard Kiger, in pro. per.; and Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF1907584 Jeffrey M. Zimel, Judge. Affirmed.
Johnathan Howard Kiger, in pro. per.; and Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Johnathan Howard Kiger appeals the order of the Riverside County Superior Court's sentencing him to a nine-year prison term imposed following his conviction for domestic violence in violation of Penal Code section 273.5.We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
This is defendant's third appeal involving the judgment entered against him in a case arising from a domestic violence incident in which defendant's ex-girlfriend testified that he had gotten drunk, started an argument, slapped her, pushed her head against a car, dragged her by the leg, and strangled her into unconsciousness.
1. Defendant's First Appeal
Following a 2020 bench trial, defendant was found guilty of domestic battery with a prior (§ 273.5, subd. (f)(1), count 1) and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4), count 2), each with a domestic violence great bodily injury enhancement (§ 12022.7, subd. (e)). (People v. Kiger (2022) 76 Cal.App.5th 1147, 1149 (Kiger I.).) In addition, a "strike" prior (§§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction enhancement (§ 667, subd. (a)) were found true. (Ibid.) Defendant was sentenced to a total of 16 years in prison, including eight years (double the midterm) on count 1. (Ibid.)
Defendant appealed. We held that there was insufficient evidence of domestic battery with a prior because his only relevant prior conviction was for an attempt, not for a completed crime. (Kiger I, supra, 76 Cal.App.5th at pp. 1150-1152.) We reduced the conviction of domestic battery with a prior (§ 273.5, subd (f)(1)) to simple domestic battery (§ 273.5, subd. (a)) and affirmed the judgment with respect to the conviction as modified. (Kiger I, at p. 1152.) We reversed the judgment with respect to defendant's sentence and remanded for resentencing. (Id., at pp. 1152-1153.)
2. Defendant's Second Appeal
On remand, defendant's counsel purported to waive defendant's presence and the trial court resentenced defendant on the single count of simple domestic battery. (People v. Kiger (May 25, 2023, E079252) [nonpub. opn.] (Kiger II).) The trial court reduced the sentence on count 1 to six years (double the midterm), thereby lowering defendant's sentence to a 14-year prison term, but failed to recalculate his custody credits. (Kiger II, supra, E079252.)
Defendant appealed. We found the trial court violated his constitutional and statutory right to be present at sentencing. We also noticed that defendant might be eligible for dismissal of an enhancement because of an amendment to section 1385. We remanded the matter for resentencing with instructions to the trial court to consider exercising its discretion to strike defendant's prior serious felony conviction enhancement and to recalculate his custody credits. (Kiger II, supra, E079252.)
3. The Remand Proceedings Resulting in This Appeal
Defendant was present with counsel at the hearing on remand. As to count 1, the domestic violence charge, the court imposed the midterm of three years, doubled to six years because of the strike prior, and added an additional three-year term for the great bodily injury enhancement. With respect to count 2, the assault charge, and its great bodily injury enhancement, the court ordered but then stayed the same sentence imposed for count 1. It also dismissed the prior serious felony conviction enhancement (§ 667, subd. (a)) and adopted the calculation of actual and conduct credits submitted by defendant's probation officer. Defendant timely noticed this appeal and we appointed counsel to represent him.
DISCUSSION
Defendant's appointed appellate counsel has filed an opening brief that sets forth statements of the case and facts but does not present any issues for adjudication. He argues that we are required to independently review the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. In his brief, he requests a full review of the entire record in his case, which he believes supports his innocence. He contends review will reveal: (i) scientific evidence showing the victim was not injured; (ii) the court was swayed by sympathy for the victim; (iii) prosecutorial misconduct, including altering evidence and soliciting false testimony, and failure to comply with discovery requests; (iv) the victim was motivated by desire for financial gain; and (v) cumulative error resulting from material misstatements of facts.
As defendant acknowledges, the issues raised in his supplemental brief are intended to challenge his conviction as to guilt, that is, the court's finding that he committed the acts of domestic violence and assault. The time for seeking appellate review of those issues was in his first appeal taken after the trial court entered its judgment in August 2020. (Cal. Rules of Court, rule 8.308(a) [an appeal must be brought within 60 days after rendition of the judgment].) In that appeal, although we reversed the sentencing portion of defendant's judgment, we modified and affirmed his conviction as to guilt. (Kiger I, supra, 76 Cal.App.5th at pp. 1152-1153.) Our opinion in the first appeal has long since become final. (Cal. Rules of Court, rule 8.366 (b) [with exceptions not applicable here, the decision of a published opinion of a Court of Appeal becomes final in that court 30 days after its filing].) Accordingly, we do not have jurisdiction to consider the arguments presented in defendant's supplemental brief.
We acknowledge defendant's conviction would not be treated as final if he were entitled to the benefit of supervening ameliorative legislation that becomes effective before his sentencing issues are resolved and become final. (People v. Lopez (2025) 17 Cal.5th 388, 392-393.)
DISPOSITION
The judgment imposing defendant's sentence is affirmed.
We concur: MILLER J. CODRINGTON J.