P. v. Christopher
Filed 4/9/12 P. v. Christopher CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL JOSEPH CHRISTOPHER,
Defendant and Appellant.
D059953
(Super. Ct.
No. SCD231659)
APPEAL from
a judgment of the Superior Court
of
County, Esteban Hernandez, Judge. Affirmed.
A jury
convicted Paul Joseph Christopher of assault
with intent to commit rape (Pen. Code,
misdemeanor battery (§ 243.4,
subd. (e)(1)). The jury found
Christopher was armed with and used a deadly weapon during the assault
(§ 12022.3, subds. (a) & (b)).
Christopher admitted three probation denial prior convictions. (§ 1203, subd. (e).)
The trial
court sentenced Christopher to a determinate term of 14 years, consisting of
the middle term of four years for the assault plus 10 years for the weapon
enhancement under section 12022.3, subdivision (a). The sentence for the armed enhancement
charged under section 12022.3, subdivision (b) was stayed pursuant to section
654. Sentences for the misdemeanors were
imposed as time served. The court also
sentenced Christopher in three other cases in which his probation had been
revoked. Those sentences were ordered to
run concurrently with the 14-year term in the current case.
Christopher
filed a timely notice of appeal.
Counsel has
filed a brief pursuant to
Cal.3d 436 (Wende) and
(Anders) raising possible, but not
arguable issues. We offered Christopher
the opportunity to file his own brief on appeal. Christopher asked for and received an
extension of time. Christopher filed his
brief after the extension of time had expired, however, the court accepted the
brief and it is discussed below.
STATEMENT
OF FACTS
In the
early morning hours of December 31,
2010, R.D. was walking home from the bus stop after work. As she was walking Christopher approached her
and spoke to her.
Christopher
was carrying a bicycle and placed the wheel of the bicycle in R.D.'s path. He touched her hand and told her he wanted to
have sex with her. He then produced a
knife and a condom. He pressed the knife
against her and placed his hand on various parts of her body.
When
Christopher pushed her against a wall, R.D. suggested that her house was nearby
and they would be better there.
Christopher then followed her to her house. She was able to distract Christopher and get
into her house, lock the door and call police.
Christopher then left.
Police
arrested Christopher about a mile from R.D.'s house. He matched the description given by the victim. He acknowledged encountering the woman but
said that he had just grabbed her and gave her a hug. Police did not find a knife or condom in
Christopher's possession at the time of his arrest.
DISCUSSION
As we have
previously noted, appellate counsel has filed a brief indicating she is unable
to identify any arguments for reversal and asks this court to review the record
for error as mandated by Wende, supra,
25 Cal.3d 436. Pursuant to
identifies the possible, but not arguable issues:
1. Whether the evidence was sufficient to
support the true findings on the weapons enhancements;
2. Whether trial counsel was ineffective for
failure to file a motion to suppress Christopher's "non-
3. Whether the trial court abused its discretion
in imposing the upper term for the weapons use enhancement;
4. Whether the trial court abused its discretion
in failing to strike the weapons use enhancement under section 1385;
5. Whether the trial court erred in staying,
rather than striking the armed enhancement; and
6. Whether the trial court erred in awarding
credits on the probation revocation cases pursuant to section 2933.1.
In his
raises a number of issues, which we have reviewed in light of the record. We have concluded that none of the issues
raised presents an arguable appellate issue. We will address each of his
issues:
1. Whether the action of police in discarding a
plastic bag denied Christopher a fair trial.
When
Christopher was arrested and identified by the victim, police found he was in
possession of two bags. They searched
each bag and found no incriminating evidence.
Some of the belongings were contained in a black plastic bag. Apparently the bag was discarded. No issue regarding the discarding of the bag
was raised in the trial court. Nothing
has been presented on appeal to indicate what, if any conceivable prejudice
might arise from the loss of the bag. (
51.) Accordingly, this contention does
not present an arguable appellate issue.
2. Whether the trial court erred by omitting
some wording from a jury instruction.
First,
there was no objection in the trial court to the language of the jury
instructions. Further, the instructions
contained in CALCRIM No. 251, as given, directed the jury to the need for the
union of act and required mental state.
The instruction specifically set out the required specific counts which
require particular mental states. The
remainder of the jury instructions correctly defined the elements of each
crime. In light of the record, this
contention does not raise an arguable appellate issue.
3. Whether there was inadequacy of the factual
account of the victim and the police regarding the facts of the offense.
Here
Christopher merely points out inconsistencies between the testimony of the
victim at the preliminary hearing and trial and those of a police officer. All of the inconsistencies were fully
presented to the trial jury which found the defendant guilty. The fact Christopher can point to some
inconsistent testimony does not raise an arguable issue as to the sufficiency
of the evidence to support his conviction.
4. Whether the prosecutor used false testimony.
Christopher
does not direct us to any evidence that the prosecutor used "false
testimony" at trial. The fact of
inconsistencies as between witnesses does not rise to an arguable appellate
issue of a due process violation by
the prosecutor. If there is any basis
for such a claim it is not contained in the record on appeal. Thus any remedy Christopher might have would
have to be by way of a habeas corpus petition filed in the trial court.
In short,
we have considered all of Christopher's contentions raised in his supplemental
brief, and we have not found any of them to raise an arguable appellate issue
in light of the record before us.
We have
reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders,
supra, 386 U.S.
738, and have not found any reasonably arguable appellate issues. Competent counsel has represented Christopher
on appeal.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
further statutory references are to the Penal Code unless otherwise specified.
436.
