Opinion
D072874
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JACKIE CHARLES ROSS, Defendant and Appellant.
Rachel Ferguson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE367054) APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed. Rachel Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted Jackie Charles Ross of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and simple battery (§ 242) as a lesser included offense of battery with serious bodily injury (§ 243, subd. (d)). The jury found not true the allegations of personal infliction of great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). Ross admitted he previously suffered three prison priors (§§ 667.5, subd. (b), 668), a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a strike prior (§§ 667, subds. (b)-(i), 1170.12, 668).
All subsequent statutory references are to the Penal Code.
At the sentencing hearing, the court declined to strike Ross's prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Ross was sentenced to an aggregate term of 11 years in state prison, consisting of the upper term of four years on the assault charge, doubled due to the strike prior conviction, plus three one-year enhancements for each of the admitted prison prior convictions. Ross filed a timely notice of appeal.
Due to the jury's finding that the allegations of great bodily injury were not true, Ross's current offense is not deemed a serious felony and, therefore, Ross's admission of his prior serious felony conviction did not result in the imposition of a five-year enhancement.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel indicates she 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 Ross the opportunity to file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)
In January 2017, Gary Smart, a security officer for San Diego Transit Enforcement, was on duty at the El Cajon trolley station. Smart heard a woman scream and he ran to her. A bystander told Smart the woman had been hit by a man who ran away. As Smart questioned the woman, defendant Ross returned to the station and approached Smart in an aggressive manner. Ross lunged at the woman and Smart stepped between them. Ross then hit Smart, causing him to fall and hit his head on the pavement. Smart testified that he "went black" and when he tried to stand back up, he lost his balance and felt disoriented and dizzy. The entire incident was captured by a security camera and Smart's body-worn camera and the videos were shown to the jury.
Ross was arrested shortly thereafter and transported to a nearby police station. During an interview, Ross admitted he punched Smart and "knocked [him] out." At trial, defense counsel admitted that Ross punched Smart and focused on persuading the jury to not find that Smart suffered serious bodily injury.
DISCUSSION
As we have noted, appellate counsel has stated she has been unable to identify any arguable issue for reversal on appeal. Counsel requests this court to review the record for error pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (Anders). To assist this court in its review, counsel has identified the following possible, but not arguable issues on appeal:
1. "Whether the trial court's denial of appellant's Romero motion was an abuse of discretion that 'fell outside the bounds of reason' ";
2. "Whether the prosecution needed to plead and prove probation eligibility and, if so, whether appellant was on adequate notice based on the pleadings in light of the trial court's statement that appellant was statutorily ineligible for probation due to his strike prior"; and
3. "Whether appellant is serving an unauthorized sentence, as one of the prison priors used to enhance his sentence under section 667.5 subdivision (b) has since been reduced to [a] misdemeanor pursuant to Proposition 47."
We have reviewed the entire record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any arguable issue for reversal on appeal. Competent counsel has represented Ross on this appeal.
The third "Anders issue" raised by counsel refers to one of Ross's prior felony convictions being reduced to a misdemeanor pursuant to Proposition 47, but the record on appeal does not include any evidence of such a reduction. As counsel recognizes, this issue, premised on evidence outside the record, is properly raised in a petition for writ of habeas corpus, not on direct appeal. Ross has not yet filed any writ petition in this court. --------
DISPOSITION
The judgment is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. AARON, J.