Opinion
E080731
08-16-2023
THE PEOPLE, Plaintiff and Respondent, v. DAMION DONNELL ALLEN, SR., Defendant and Appellant.
Damion Donnell Allen, Sr., in pro. per.; Kirsten M. Ault, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF2100262. John M. Monterosso, Judge.
Damion Donnell Allen, Sr., in pro. per.; Kirsten M. Ault, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MILLER J.
STATEMENT OF THE CASE
On February 23, 2021, a felony complaint charged defendant and appellant Damion Donnell Allen, Sr., with two counts of assault with a deadly weapon other than a firearm under Penal Code section 245, subdivision (a)(1) (counts 1 &2). The complaint alleged that on February 19, 2021, defendant assaulted two different victims with a metal rod.
All further statutory references are to the Penal Code unless otherwise indicated.
On April 15, 2021, the prosecutor and defense counsel jointly petitioned for defendant to be evaluated for participation in mental health diversion. The court granted the request and set the next hearing for May 11, 2021; it was subsequently continued to June 1.
On May 25, 2021, defendant filed a prima facie showing of his eligibility and suitability for mental health diversion under section 1001.36. Defendant alleged that he had been diagnosed with schizophrenia. Defendant stated that his diagnosis played a significant role in his offense and he "would respond to mental health treatment."
In their opposition filed on May 27, 2021, the People asserted that "[t]here is no evidence that the defendant's alleged mental disorder played any role in the commission of the charged offenses."
On June 1 the matter was again continued, to July 6, 2021. On that date, the trial court found defendant to be ineligible for mental health diversion because his mental health disorder did not play a significant role in the commission of the offenses.
An information filed December 21, 2021, charged defendant with the same two assault counts and enhancements that were contained in the February 23, 2021, felony complaint.
On August 11, 2022, defendant pled guilty to count 1 and admitted a strike prior. Defendant also requested immediate sentencing. After defendant pled guilty to violating section 245, subdivision (a)(1), the court stated: "Accept that as the factual basis." After finding true a strike prior, the trial court imposed the upper term of eight years, and granted a total of 539 actual and 538 conduct credits for a total of 1,077 days. The trial court found that defendant did not have the ability to pay fines and fees and waived the court operations and conviction assessment fees. The court then ordered $300 restitution and parole revocation fines but stayed the execution of the fines. Count 2 was dismissed but the court retained jurisdiction on the issue of actual restitution.
On the felony plea form dated August 11, 2022, defendant agreed to pay restitution, including restitution to the victim of the dismissed count which was $2,127.37. Defendant also agreed to a custody term of eight years, 1,077 days of custody credit, and to waive his right to appeal.
On August 16, 2022, the abstract of judgment was filed; no amount was listed for victim restitution. Defendant did not file a notice of appeal.
On January 4, 2023, the trial court ordered the minute order from August 11, 2022, be corrected to reflect $2,127.37 in victim restitution, nunc pro tunc to August 11, 2022. On January 6, 2023, the judgment was amended to reflect the restitution amount.
On February 21, 2023, defendant filed a notice of appeal.
STATEMENT OF FACTS
Defendant admitted that he violated section 245, subdivision (a)(1), on February 19, 2021. On the morning of February 19, 2021, defendant entered the work bay of an oil change garage and shouted" 'I told you motherfuckers to stay away from my wife!'" Defendant struck one of the employees on the back, and back of the head with a metal pipe; he attempted to strike another employee with the pipe but missed and hit a car instead. Neither employee knew defendant.
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and has requested this court to undertake a review of the entire record. Pursuant to Anders, counsel identified the following issues to assist the court in its search of the record for error:
1. "Whether there is a procedural basis to challenge [defendant]'s underlying conviction." 2. "Whether the court erred by amending the judgment to impose restitution."
We offered defendant an opportunity to file a personal supplemental brief. On June 29, 2023, defendant filed a one-page handwritten brief.
In the brief, defendant challenges the sentencing imposed in the underlying case. He writes: "I was never told I was getting 8 yrs upper term, I was told 4 yrs plus a 4 yr enhancement my base term was 4 years, not straight 8 years." Moreover, defendant challenges the court's order finding him ineligible for mental health diversion: "Also I was turned down for Mental Health programs because the court just wanted to send me to prison." In his notice of appeal, however, defendant stated he was appealing the "nunc pro tunc order re victim restitution." Therefore, because this appeal is from the order regarding restitution, defendant cannot challenge the validity of his plea in his underlying case nor the court's finding regarding his eligibility for mental health diversion.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error. We find no error.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., FIELDS J.