Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, Super. Ct. Nos. BA296462; BA287312, Sam Ohta, Judge.
Jonathan B. Steiner and Richard L. Fitzer, under appointments by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MANELLA, J.
Guillermo Ochoa appeals from judgments entered following an order revoking probation and following a jury trial in which he was convicted of misdemeanor assault. (Pen. Code, § 240.) He was sentenced to the low term of two years in prison upon revocation of probation and 90 days in jail for the assault conviction with credit for time served.
Previously he pled no contest to possessing a controlled substance for sale (Health & Saf. Code § 11351), imposition of sentence was suspended and he was placed on felony probation for three years upon various terms and conditions, including that he spend 180 days in county jail.
An information was filed in Superior Court in case number BA296462, charging appellant with attempted second degree robbery (Pen. Code, §§ 664/211) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Following a jury trial, appellant was found not guilty in count 1 of attempted second degree robbery, not guilty in count 2 of assault by means of force likely to produce great bodily injury and guilty of misdemeanor assault, a lesser included offense to that charged in count 2. Based on the evidence, the court concluded appellant had violated probation.
The appeals in cases B190888 and B193008 were ordered consolidated under case number B190888.
The record establishes that on January 14, 2006, at approximately 9:10 p.m., Los Angeles Police Officer Juan Garcia and his partner Daniel Garcia were on patrol in the area of Sixth Street and Burlington Avenue in Los Angeles when they saw appellant twice punch Juan Hernandez. When Mr. Hernandez fell to the ground, appellant kicked him very hard, approximately four times, in the head. The officers ordered appellant to stop and he complied.
Mr. Hernandez appeared to be in pain and had redness on his face where he had been kicked. He stated appellant approached him and demanded money and when Mr. Hernandez refused, appellant began to punch him. Officer Juan Garcia never saw Mr. Hernandez fight back or strike appellant. Mr. Hernandez did not request medical assistance.
Appellant testified on his own behalf that Mr. Hernandez had asked him for a cigarette. When appellant said he did not have one, Mr. Hernandez said, “‘Fuck your mother then.’” Appellant asked Mr. Hernandez why he was talking to him like this since appellant did not even know him. Mr. Hernandez pushed appellant in the chest and appellant pushed back. Mr. Hernandez pulled appellant by the shirt and they exchanged punches. Appellant did not know Mr. Hernandez and did not ask him for money. When Mr. Hernandez fell, appellant kicked him twice, but not in the face. Both appellant and Mr. Hernandez were drunk.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On January 17, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On January 22, 2007, that letter was returned to the court with the notice that appellant had been paroled. On January 22, 2007, we were advised by appellate counsel that he mailed the transcripts and a copy of the brief to appellant at the California Rehabilitation Center in Norco and that he had received that material back in the mail with a notation that appellant had been paroled. Counsel stated he had no way to contact appellant and would update the court as to appellant’s address if and when he obtained it.
Subsequently, this court was advised by the California Department of Corrections that appellant had been paroled and was in the custody of the Immigration and Naturalization Service.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgments entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112.)
DISPOSITION
The judgments are affirmed.
We concur:
EPSTEIN, P. J., WILLHITE, J.