P. v. Noriega
Filed 2/10/09 P. v. Noriega CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
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THE PEOPLE, Plaintiff and Respondent, v. JEREMY DAVID NORIEGA, Defendant and Appellant. | C057905 (Super. Ct. No. 07CR12419) |
In May 2007, defendant Jeremy David Noriega was at a restaurant with his sister. They got into an argument, and defendant screamed at her, grabbed her by the hair, and threw her against a patrons truck. The patron intervened and asked defendant, Can we calm down? In response, defendant asked the patron whether he want[ed] some of this. The patron replied, I dont even want to be here. Defendant came toward the patron, shoving him and striking his head with a closed fist. The patron fell to the ground and defendant kicked him in the head, rendering him unconscious. He required five stitches and treatment for a concussion. After defendant was arrested and advised of his rights, he told an officer the patron wanted to get involved in the argument between defendant and his sister. Defendant explained that they butted heads and the patron went to the ground. Defendant denied hitting or kicking him.
A jury convicted defendant of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) and acquitted him of being under the influence of a controlled substance (Health & Saf. Code, 11550, subd. (a)). The trial court found that defendant had a prior serious felony conviction (Pen. Code, 667, subds. (b)-(i), 1170.12) in 2007 for first degree burglary conviction and served a prior prison term (Pen. Code, 667.5, subd. (b)) for a 2005 conviction for receiving stolen property.
Defendants motion to reduce his conviction to a misdemeanor and his motion to strike the serious felony conviction allegation were denied. He was sentenced to state prison for nine years (double the upper term of four years plus one year for the prior prison term enhancement), was awarded 203 days of custody credit and 100 days of conduct credit, and was ordered to pay a $1,800 restitution fine (Pen. Code, 1202.4), another $1,800 restitution fine suspended unless parole is revoked (Pen. Code, 1202.45), and a $20 court security fee (Pen. Code, 1465.8).
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the time imposed for the felony assault conviction is 8 years (not 4 years), and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
SCOTLAND, P.J.
We concur:
SIMS , J.
NICHOLSON , J.
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