P. v. Tell
Filed 2/6/13 P. v. Tell CA2/8
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD TELL,
Defendant and Appellant.
B239244
(Los Angeles
County
Super. Ct.
No. NA084357)
APPEAL
from a judgment of the Superior Court
of
County. Richard R.
Romero, Judge. Affirmed.
Trisha
Newman, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
* *
* * * * * * * *
Defendant
and appellant Richard Tell was charged by amended information with
§ 245, subd. (a)(1)), felony possession of ammunition (Pen. Code, §§ 12021,
12316, subd. (b)(1)), second degree robbery (Pen. Code, §§ 211, 212.5, subd.
(c)), and attempted first degree murder (Pen. Code, §§ 187, subd. (a),
664). It was also specially alleged as
to counts 1, 3 and 4 (assault, robbery, attempted murder) that defendant
personally used a deadly weapon, a screwdriver, and inflicted great bodily
injury (Pen. Code, §§ 12022, subd. (b)(1), 12022.7, subd. (a)) in the
commission of those offenses. It was
further alleged defendant had suffered two qualifying felony strikes for
robbery and assault, and had served three prior prison terms (Pen. Code, §§
1170.12, 667, 667.5).
The
incident which gave rise to the filing of the criminal information against
defendant occurred on December 26,
2009, in the City of Wilmington. At approximately 8:00
in the evening, Fernando Sanchez was walking near the intersection of Avalon
and F Streets when defendant came out of an alley and punched him the
face. Mr. Sanchez was knocked to the
ground and defendant continued to assault him, stabbing him in the chest area
and taking his cell phone. Defendant
twice told Mr. Sanchez, in poorly pronounced Spanish, that he was going to kill
him. Defendant then rolled Mr. Sanchez
over onto his stomach, stabbed him in the back and took his wallet. Mr. Sanchez was able to eventually get away
and ask for help from a security guard outside of a business across the
street. Mr. Sanchez was taken to a
hospital and treated for several stab wounds to his torso, and a collapsed
lung.
Defendant
was detained on the street shortly after the incident. Mr. Sanchez’s cell phone, a screwdriver, and
a loaded magazine of ammunition were found on defendant. Tests performed on the screwdriver later
confirmed that Mr. Sanchez’s blood was on it.
Defendant
pled not guilty to all charges, and denied all special allegations. Defense counsel moved, pursuant to Penal Code
section 995, to dismiss count 4 (attempted first degree murder) on the grounds
the charge had not been pled, or evidence presented, at the preliminary
hearing, specifically as to the element of premeditation (the original
information had not pled count 4). The
trial court granted the motion, but later reinstated the charge pursuant to an
order from the Court of Appeal following writ proceedings.
Trial by
jury proceeded in January 2012. The
investigating officers testified, as did Mr. Sanchez, the emergency room doctor
who treated Mr. Sanchez, and the criminalists and laboratory technicians who
performed the DNA testing of the blood found on the screwdriver.
Defendant
testified in his own defense, admitting he had previously been convicted of two
felonies. He attested to the December
2009 incident with Mr. Sanchez but explained that he reacted in
in which he was attacked and stabbed repeatedly. As part of the defense theory, defendant was
allowed to put on the expert testimony of Dr. Nancy Kaser-Boyd to establish
that defendant suffers from post-traumatic stress disorder as a result of the
1999 incident and its impact on defendant’s perceptions of threats.
The jury
found defendant guilty on counts 1, 2, and 3.
As to count 4, the jury found defendant not guilty of attempted first
degree murder, but guilty of the lesser included offense of attempted voluntary
manslaughter. (Pen. Code, §§ 192,
664.) The jury also found true the
special allegations that defendant personally used a deadly weapon and
inflicted great bodily injury in the commission of counts 1, 3 and 4.
Defendant
knowingly and voluntarily waived his right to a jury trial on the bifurcated
priors. The court received evidence and
found true one prior conviction for robbery and one prior prison term.
The court sentenced defendant to an
aggregate state prison term of 23 years, 4 months, calculated as follows: (1) a 15-year term on count 4, the base count
of attempted voluntary manslaughter; (2) a consecutive two-year term on count
3, robbery; (3) a consecutive 16-month term on count 2, felony possession of
ammunition; (4) an eight-year term on count 1, assault, stayed pursuant to
Penal Code section 654; and (5) a consecutive five-year term for the prior
robbery conviction (Pen. Code, § 667, subd. (a)). Defendant was ordered to pay various fines,
penalties and restitution in a stipulated amount. Defendant was awarded 898 days of custody
credits, consisting of 781 actual days and 117 days of conduct credits. Defendant timely appealed.
We appointed appellate
v. Wende (1979) 25 Cal.3d 436 (Wende)
in which no issues were raised. The
brief included a declaration from counsel that she reviewed the record and sent
a letter to defendant explaining her evaluation of the record. Counsel further declared that she advised
defendant of his right, under Wende,
to submit a supplemental brief within 30 days.
Defendant did not file a supplemental brief.
Based on our independent review of
the record, we conclude there is substantial evidence in the record to support
defendant’s conviction. (
331.) No evidentiary, instructional,
sentencing, or other errors are apparent in the record, and defendant did not
submit a supplemental brief requesting
review of any specific issue. We have
examined the entire record and are satisfied that appointed counsel fully
complied with her responsibilities in assessing whether or not there are any
colorable appellate issues. We conclude
there no arguable appellate issues. (
therefore affirm the judgment below.
DISPOSITION
The
judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW,
P. J. RUBIN,
J.
