Filed 9/24/26 P. v. Evans CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B353224
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. XCNBA510092)
ADRIAN FITZGERAL EVANS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Karla D. Kerlin, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________________
After the trial court denied his motion for mental health
diversion, Adrian Fitzgeral Evans pleaded no contest to assault
with a semiautomatic firearm. Evans appeals from the
judgment, challenging the order denying his motion for mental
health diversion. We appointed counsel to represent Evans on
appeal. After reviewing the record, counsel for Evans filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436 that did not
identify any arguable issues. After independently reviewing the
record, we have not identified any either. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The September 7, 2022 Shooting
On September 7, 2022 Beverly Holcombe returned home
and saw a white car parked across the street from her home with
a man and a woman inside it. Holcombe called her sister and her
niece and told them that, “when they come home, to see if that
white vehicle was still across the street because it looked
suspicious.” When Holcombe’s sister and niece returned home
30 minutes later, the car was still there.
The three women went out to the porch and saw the driver,
Evans, throwing trash out of the car. When Holcombe’s sister
asked him why he was throwing trash on the ground in front of
their home, Evans said, “Shut up, bitch.” Evans got out of the car
and went to the trunk. Approximately 30 seconds later,
Holcombe heard two pops. Holcombe and her family ran back
into the house, and the white car drove away. Later that night,
Holcombe discovered two bullet holes in her window. Officers
recovered a cartridge casing from the front of the house where
the vehicle had been parked.
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B. The September 11, 2022 Shooting
On September 11, 2022 Maya Pierce flagged down a police
officer to tell him a person got out of a white car with a handgun
and fired two shots at a gas station on the corner of an
intersection. The police obtained surveillance video from a
nearby convenience store, which showed a person walking down
the middle of the street, approaching the front of a white car, and
confronting the driver, Evans. Evans got out of the car and fired
his gun in the direction of the person. Eventually, the man
stepped aside, and Evans drove away.
Later the police saw the white car parked in the area of the
shootings and determined it was registered to Evans. The police
arrested Evans and found a gun, a magazine, and live
ammunition in his car. Officers questioned Evans, who said he
was “tired of people messing with him.” Regarding the first
shooting, Evans stated that “he had stopped there to relax and
roll a blunt” and that “some people from a nearby house started
hassling him [and] he got frustrated . . . . He shot because he
thought they might be going into the house to get something.”
When asked about the second incident, Evans said that, while “he
was driving with his wife and baby, they were confronted by an
aggressive person that blocked his path, and that person was
very aggressive and had spit on his car and that he had shot in
the direction of that person.”
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C. The People Charge Evans with Several Crimes, the
Trial Court Denies His Motion for Mental Health
Diversion, and Evans Pleads No Contest
The People charged Evans with one count of shooting at an
inhabited dwelling (Pen. Code, § 246)1; four counts of assault with
a semiautomatic firearm (§ 245, subd. (b)); and two counts of
possessing a firearm as a felon (§ 29800, subd. (a)(1)). The
People alleged that Evans personally used a firearm, within the
meaning of section 12022.5, subdivision (a), and that there were
aggravating circumstances, within the meaning of California
Rules of Court, rule 4.421(a)(2), (b)(1)-(3) and (b)(5). The People
also alleged Evans had been convicted of four prior serious or
violent felonies, within the meaning of the three strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Evans filed a motion for mental health diversion, claiming
he suffered from complex post-traumatic stress disorder. The
People opposed the motion, arguing Evans was “neither suitable
nor eligible for mental health diversion” because he failed “to
establish that his mental illness played a significant role in the
commission of the offense [or] that he has a specific treatment
plan.” The People also argued Evans posed an unreasonable risk
to public safety.
The trial court denied Evans’s motion for mental health
diversion. Though the trial court found that Evans had been
diagnosed with an eligible mental health disorder and that his
mental health disorder was a significant factor in committing the
charged offenses, the court found Evans posed an unreasonable
risk of danger to public safety because, “given his history of
1 Statutory references are to the Penal Code.
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violence[2] and the facts of the current offenses involving shooting
at more than one person in more than one event,” he was “at risk
of committing a super strike[3] and that he is not suitable” for
mental health diversion.
After the trial court denied his request for mental health
diversion Evans pleaded no contest to one of the counts of assault
2 The trial court stated Evans’s “criminal history begins in
1989 in Louisiana. There is a robbery in 1991. In 1992 there was
a weapons offense, [for] which he served six years six months [in]
prison in Louisiana. In 1996 he has possession for sale of a
controlled substance, four years state prison. In 2000 possession
for sale of a controlled substance, three years state prison. In
2003 there was an attempted second degree murder in Louisiana.
My notes reflected . . . it was pled down to an aggravated
[battery]. So I think he may have been originally arrested for or
charged with murder, but the actual conviction offense was
aggravated [battery]. . . . In 2014 there was a robbery in
Pennsylvania for which he served 92 months [in] prison. He
violated his supervised release and was sent back to prison, and
then in 2018, felon with a firearm, for which he did 16 months
state prison.”
3 Section 1170.18 “defines ‘unreasonable risk of danger to
public safety’ as ‘an unreasonable risk that the petitioner will
commit a new violent felony within the meaning of clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667.’ (§ 1170.18, subd. (c).) The violent felonies
encompassed in this definition ‘are known as “super strikes” and
include murder, attempted murder, solicitation to commit
murder, assault with a machine gun on a police officer,
possession of a weapon of mass destruction, and any serious or
violent felony punishable by death or life imprisonment.’” (People
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with a semiautomatic firearm and admitted the firearm use
allegation. Evans also admitted he engaged in violent conduct
that indicated a serious danger to society, within the meaning of
California Rules of Court, rule 4.421(b)(1). The court sentenced
Evans to prison for 13 years, consisting of the upper term of nine
years, plus four years for the firearm enhancement. The court
dismissed the remaining charges and allegations against Evans.
Evans timely appealed from the order denying his motion for
mental health diversion, and the trial court granted his request
for a certificate of probable cause.
DISCUSSION
We appointed counsel to represent Evans in this appeal.
After reviewing the record counsel filed a brief raising no issues.
Appointed counsel wrote Evans to explain his “evaluation of the
record on appeal and [his] intention to file this pleading.”
Appointed counsel also advised Evans that he had the “right to
file a supplemental brief” and sent Evans the transcript of the
record on appeal and a copy of the appellate brief. On August 3,
2026 this court also sent Evans notice that, “[w]ithin 30 days of
this notice, [he] may submit a supplemental brief stating any
grounds for an appeal, or contentions, or arguments which
appellant wishes this court to consider.” We have received no
response from Evans.
v. Moine (2021) 62 Cal.App.5th 440, 449; see People v. Jefferson
(2016) 1 Cal.App.5th 235, 242.)
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By imposing prison terms on Evans’s conviction for assault
with a semiautomatic firearm and on the firearm allegation, the
trial court imposed an unauthorized sentence. Section 12022.5,
subdivision (a), provides that “any person who personally uses a
firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment
in the state prison for 3, 4, or 10 years, unless use of a firearm is
an element of that offense,” and use of a firearm is an element of
the offense of assault with a semiautomatic firearm. (People v.
Sinclair (2008) 166 Cal.App.4th 848, 856.) But where the
defendant has “pleaded guilty in return for a specified sentence,
appellate courts will not find error even though the trial court
acted in excess of jurisdiction in reaching that figure, so long as
the trial court did not lack fundamental jurisdiction.” (People v.
Hester (2000) 22 Cal.4th 290, 295; accord, People v. Nguyen
(1993) 13 Cal.App.4th 114, 122; see, e.g., People v. Jones (1989)
210 Cal.App.3d 124, 134 [defendant was estopped from
challenging dual use of the same five-year enhancement under
section 667, subdivision (a), imposed as part of a negotiated
disposition].)
We have examined the record and are satisfied that
appellate counsel for Evans has complied with his responsibilities
and that there are no arguable issues. (Smith v. Robbins (2000)
528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 118-
119; People v. Wende (1979) 25 Cal.3d 436, 441-442.)
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DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
STONE, J.
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