P. v. Smith
Filed 4/25/13 P. v. Smith CA4/2
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opinion has not been certified for publication or ordered published for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.
THE PEOPLE,
Plaintiff
and Respondent,
v.
MARK ALLEN SMITH,
Defendant
and Appellant.
E055533
(Super.Ct.No.
SWF1100831)
OPINION
APPEAL
from the Superior Court
of
County. Arjuana T.
Saraydarian, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Ann
Bergen, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
On May 19, 2011, an information was
filed charging defendant and appellant Mark Allen Smith with one count of
battery causing serious bodily injury (Pen. Code, § 243, subd. (d)) and an enhancement
of inflicting great bodily injury (Pen. Code, §§ 667, 1192.7, subd. (c)(8)).
On
September 12, 2011,
proceedings in this case were suspended under Penal Code section 1368. After the completion of
on October 11, 2011, the
proceedings were reinstated.
On
November 7, 2011, trial by
jury commenced. Two days later, the jury
found defendant guilty of battery causing serious bodily injury (count 1), but
found that defendant did not inflict great bodily injury.
On December 8, 2011, defendant was
sentenced to the midterm of three years in state prison on count 1; however,
the execution of the sentence was suspended, and formal probation was granted
for 60 months. Defendant was committed
to the custody of the Riverside County Sheriff for 330 days, with credit for
time served of 230 actual days, plus 120 days conduct credit under Penal
Code section 4019, for a total of 350 days.
The trial court also ordered defendant to pay various fines and fees.
On January 24, 2012, defendant filed his
timely notice of appeal.
STATEMENT
OF FACTS
On
July 30, 2010, defendant,
the victim, and the victim’s brother were in a gym in Temecula. According to the victim, defendant bumped
into his back, grabbed his arm, mumbled something, and then slapped the victim
on both ears. Thereafter, defendant
head-butted the victim in the face with sufficient force that the victim’s nose
started to bleed. The victim grabbed his
nose and walked to the front desk to complain about defendant’s actions. Defendant followed the victim to the desk and
stated, “‘Let’s finish it right now.’â€
Because his nose would not stop bleeding, the victim went to the
emergency room. While waiting for a
doctor to see him, the victim called the police. The victim testified that he had never talked
to defendant prior to this incident and did not know him.
According
to defendant, he and the victim were working out near each other in the
gym. Defendant testified that he was
about to get smashed against a machine, so he put his hands up and the victim
bumped into him. The victim then
approached defendant and grabbed him with both arms. Defendant removed the victim’s arms. The victim then walked away from defendant
and toward his brother, about 15 feet away.
Defendant then approached the victim to shake his hand, to be “nice
[and] polite.†However, the victim
slapped defendant. Defendant’s response
to being slapped was to head-butt the victim.
ANALYSIS
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 requesting this court
undertake a review of the entire record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an
independent review of the record and find no arguable issues.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
