Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge. No. VCF208792
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Kane, J.
A jury convicted appellant, Wayne David Marsh, of willfully inflicting on a spouse corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a)). In a separate proceeding, the court found true an allegation that appellant had suffered a “strike.” The court also found, based on the conviction in the instant case, that appellant violated his probation in another case. The court imposed a prison term of six years, consisting of the three-year middle term, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), plus eight months on the case in which appellant violated his probation.
All statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant has not responded to this court’s invitation to submit additional briefing.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On August 20, 2008, Tulare County Deputy Sheriff Jeremy Rose, responding to a dispatch report of a request for medical aid, made contact with Crystal Marsh. Crystal told the deputy she tripped over a plastic storage container, fell and hit her head. Shortly thereafter, paramedic Bethane Sustaric arrived on the scene. She noticed that Crystal was bleeding from a cut to her head. Paramedic Sustaric rode with Crystal in an ambulance to Kaweah Delta Medical Center. During the ride, Crystal stated appellant pushed her down and punched her in the face.
We refer to Crystal Marsh by her first name for the sake of brevity and clarity. No disrespect is intended.
Deputy Rose spoke with Crystal at the hospital, at which time Crystal told him the following: She and appellant argued over “whether she was [going to] leave him or not.” Appellant “acted like he was [going to] strike her,” so Crystal put up her hands in a defensive position. At that point, appellant “pushed” her, causing her to fall down and strike her head. She stated she lied at first because she was scared.
Crystal testified in court to the following: Appellant is her husband. They owned a Jeep Cherokee. While removing plastic storage containers from the vehicle, she slammed the hatch closed. Appellant asked her why she had closed the hatch so hard. He walked away and Crystal, who had forgotten that she had set some plastic storage containers on the ground beside her, tripped over them, fell and struck the back of her head on the ground.
Crystal further testified to the following: While she was in the ambulance, she told a paramedic that she slipped and fell. At the hospital, Deputy Rose told Crystal he had a “vendetta” against appellant and that “if [she] did not tell him that [appellant] did it,” he would “place her in handcuffs after the doctors had cleaned [her] up, and... take [her] to jail.” She told the deputy her husband pushed her to the ground so that the deputy would not take her to jail.
Deputy Rose testified he did not tell Crystal he had, and he did not have, a vendetta against appellant.
Procedural Background
On October 21, 2008, appellant made, and the court granted, a motion for the appointment of substitute counsel (Marsden motion).
See People v. Marsden (1970) 2 Cal.3d 118.
Appellant made a second Marsden motion on November 21, 2008, and on that date, the court denied the motion.
On March 16, 2009, during jury voire dire, appellant, pursuant to Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, challenged the prosecutor’s use of a peremptory challenge, claiming that the challenge was based solely on the prospective juror’s race. The court ruled the claim was without merit.
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.