Opinion
A149384
02-01-2017
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD LEE KONOPASEK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-16-85185)
Appellant Clifford Lee Konopasek appeals following his plea of no contest to assault with force likely to produce great bodily harm (Pen. Code, § 245, subd. (a)(4)), and admissions to two alleged special allegations.
All further statutory references are to the Penal Code, unless otherwise indicated.
Appellant's counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention. No supplemental brief has been filed by appellant personally.
We note that appellant's counsel concedes he has not obtained a certificate of probable cause, which is required by section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. A certificate is not required when the counsel states, as appellant's does here, that the appeal is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. Accordingly, we have reviewed the whole record pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, focusing upon grounds for appeal arising after entry of the plea. Having done so, we conclude that there are no arguable issues on appeal.
PROCEDURAL AND MATERIAL FACTUAL BACKGROUND OF CASE
The facts are taken from a presentencing probation department report.
The following is the probation department's summary of testimony presented during the preliminary hearing held on April 26, and April 28, 2016:
"The first witness was Mr. Lorenzo Ramirez. Mr. Ramirez stated he and his father, Misael Calderon, had gone shopping at the Evergreen Shopping Center in Willits on March 18, 2016. He heard some loud yelling behind him, and when he turned to look, he saw a male subject (identified in the courtroom as Dakota Ryan Smith) yelling at his father, asking him what he was looking at. Dakota, who was standing in front of Old Mission Pizza, started running towards his father. His father grabbed a shopping cart to use as a barrier between himself and Dakota, who began swinging at him. Then, another male subject came out (identified in the courtroom as Clifford Montana Smith-Konopasek), and also began swinging at his father. At some point, Montana hit his father in the nose, causing it to bleed. His father was able to get away and ran across the parking lot, at which time, both Dakota and Montana went back to Old Mission Pizza. Mr. Ramirez stated that is when James Mooney (who was in the parking lot at the time) came to his father's assistance, by giving him some napkins for the blood on his face. The next thing Mr. Ramirez knew, both Dakota and Montana came back out of the pizza place and started to attack his father again. Mr. Mooney grabbed Montana by the neck, and Dakota said, 'Don't grab my brother,' and then started punching Mr. Mooney. Montana got away from Mr. Mooney's grasp, and also started punching him. Mr. Ramirez stated he saw one of the assailants holding Mr. Mooney, and the other one hitting him, mostly in the face. Then another man came out of Old Mission Pizza (identified in the courtroom as [appellant]) and joined the younger men in beating Mr. Mooney. Mr. Ramirez said he observed all three men holding something black in their fists as they were hitting Mr. Mooney.
"Upon cross-examination, Mr. Ramirez stated he remembered hearing an argument between Dakota and a female subject in the parking lot prior to the attack on his father. He also said he had gone to school with Montana, but did not recognize him at the time. Mr. Ramirez said he first realized Dakota and Montana were brothers when one of them said, 'Don' t hit my brother.' When the assault was over, Mr. Ramirez saw Montana and Dakota take off across the parking lot towards Rite Aid, and [appellant] go back to Old Mission Pizza. Mr. Ramirez did not. see them holding any objects in their hands as they were leaving, and did not see them throw anything away.
"The next witness was Dolores O'Banion, who was working at Old Mission Pizza on the day of the incident. She did not see anything happening in the parking lot but overheard [appellant] talking on his cell phone, while he was in the bar area of the restaurant. She heard him say something to the effect of, 'Change your shirt, ditch the glasses, or get rid of the hat.' She was not sure which order he said those things, but was certain he said, 'Change your shirt.' Ms. O'Banion did not know who [appellant] was talking to but recognized him as being a 'regular' at the bar.
"Mr. Misael Calderon was the next witness. He was assisted by a certified Spanish to English interpreter. Mr. Calderon stated he and his son were on their way to Dollar Tree, at about 4:00 p.m. when he heard 'some screams.' He looked in that direction to see what was happening and saw a male and a female arguing. The male looked back at him and angrily asked him what his problem was. Mr. Calderon said the male then ran towards him and started 'throwing blows' at him. Then the second male subject showed up, who Mr. Calderon identified as Dakota. He stated both of them were trying to hit him, but only Montana was able to land a blow. Mr. Calderon believed Montana had something in his hand when he hit him because he felt the sharpness of it. He was hit on the side of his nose, and still had a scar. While on the witness stand, Mr. Calderon's eye was still discolored from the blow, and still hurt him.
"Mr. Calderon said he was able to get away, and eventually, a man (Mr. Mooney) came to his aid. When the two attackers returned to confront Mr. Calderon again, Mr. Mooney grabbed one of them (Montana) and tried to pull him away. Then the two younger men were joined by an older man [appellant]. All three men started to attack Mr. Mooney. He said they were kicking him, and hitting him 'with something' in their hands. Eventually, the attack ended, and the two younger men ran towards Rite Aid, and the older man went towards Old Mission Pizza.
"Mr. Calderon stated he did not seek medical treatment that day but went to see a doctor two days later, complaining of facial pain. The doctor checked his eye, but he was not treated and was not given any diagnosis. He did not go back to the doctor since that time.
"The next witness was James Mooney. Mr. Mooney stated he had been on his way to a Christian 'rehab' in the Redwoods and had stopped along the way to pick up snacks at the Dollar Tree in Willits. He heard someone yelling across the parking lot, saying something like, 'Are you talking to me?' He ignored it until he heard a commotion behind him, then saw Mr. Calderon getting attacked. Mr. Mooney then identified Montana and Dakota as the two assailants. He stated he witnessed one of them; he did not know which, hit Mr. Calderon in the face. The two young men then fled towards Old Mission Pizza. Mr. Mooney called 9-1-1 and went to get some napkins for Mr. Calderon. While Mr. Mooney was waiting for law enforcement to arrive, he observed [appellant] and Montana come out of the pizza place and run towards Mr. Calderon. Mr. Mooney then went over to stand next to Mr. Calderon. He felt certain Montana was getting ready to hit Mr. Calderon so he grabbed Montana by the neck and started pulling him away. At that point, he felt someone hit him and then say, 'Don't grab my brother,' but he did not see who it was. Mr. Mooney said he got hit approximately nine or ten more times, but since he was trying to protect himself by keeping his head down, he could not see who was hitting him, or how many people were there. He did notice the blows hurt a lot more than a normal punch and said he knew this because he had been hit before. Mr. Mooney said he was hit on his ear, the front of his forehead, on top of his head, the back of his head, on his nose, and on his cheekbone. While on the witness stand, he pointed out a scar over his right eye and two scars on his hairline. His cheekbone was fractured, and he had a bad cut on his nose, but it was not broken. Mr. Mooney also believes he suffered some damage to his ear. After the attack, he saw Montana and Dakota run across the parking lot towards Lumberjack's Restaurant but did not see where [appellant] went.
"The last witness was Sergeant McNelley of the Willits Police Department. He stated he believed it was Dakota who was arguing with his girlfriend, due to subsequent information he had received. Sergeant McNelley was involved in the search of the suspects, but did not find anything that could be considered a 'punch enhancer.' He did not observe anyone toss anything before they were apprehended. Sergeant McNelley stated he was at Frank Howard Hospital when Mr. Mooney was being treated."
B. Procedural Background
A felony information was filed by the Mendocino County District Attorney on May 2, 2016, charging appellant with two counts of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)), and one count of resisting an officer (§ 69). The information also alleged two special allegations as to the assault counts that appellant used a deadly weapon ("a punch enhancer") while committing the assaults, and that he inflicted great bodily harm on the victim. Two separate enhancements were also alleged as to the resisting arrest count, including that appellant had suffered a prior felony strike conviction and a prior serious felony conviction, within the meaning of sections 667, subdivision (a) and 1170.12.
Initially appellant entered a plea of not guilty to the charges and denied the special allegations. However, at a subsequent pretrial conference appellant withdrew his not guilty plea and entered a plea of no contest to one of the assault charges (count 1), and he admitted the deadly weapon use and the great bodily harm enhancements. An Arbuckle waiver was also entered. In return, the prosecution agreed that it would dismiss the rest of the charges and special allegations, and would not seek a state prison sentence. Instead the prosecution agreed to a grant of formal probation with conditions, including that appellant be ordered to serve local jail time of up to one year. A written plea form was also filled out, initialed, and signed by appellant and his counsel.
People v Arbuckle (1978) 22 Cal.3d 749. --------
At sentencing on July 26, 2016, consistent with the negotiated plea and with the recommendations of the probation department, the court suspended imposition of sentence and placed appellant on three years of supervised probation conditioned upon his serving 270 days in county jail (with 261 days of custody credit), and terms and conditions as stated on the record, and as set forth in the presentencing probation report.
CONCLUSIONS BASED UPON INDEPENDENT RECORD REVIEW
Upon our independent review of the record, we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. Specifically, we conclude there was no error in the plea disposition or in sentencing. The sentence appellant received, and the restitution fines, penalties, and conditions imposed were supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.