People v. Walker CA3

Filed 10/23/13 P. v. Walker CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sutter) ----

THE PEOPLE,

Plaintiff and Respondent, C073231

v. (Super. Ct. No. CRF120873)

EUGENE WALKER,

Defendant and Appellant.

Appointed counsel for defendant Eugene Walker asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record and defendant’s supplemental brief, we conclude there was no error and affirm the judgment. SUMMARY OF FACTS AND PROCEDURAL HISTORY About 2:40 p.m. on April 21, 2012, defendant, his brother, and a third individual (Jerome) were riding their bicycles when they stopped in front of Colleen McIntyre’s home. Defendant and the others straddled their bicycles and began talking to each other. Defendant then picked up a softball-sized rock and used it to hit Jerome in the head. Officer Charles Ernst arrived at the scene and found Jerome lying on the front lawn, lapsing in and out of consciousness. Officer Ernst also noted Jerome had a one- inch laceration on his left temple, which was later stapled closed.

1

The People charged defendant with assault with a deadly weapon resulting in great bodily injury. (Pen. Code,1 §§ 245, subd. (a)(1) & 12022.7, subd. (a).) The People further alleged defendant was previously convicted of a serious felony (§§ 667, subd. (a) & 1192.7, subd. (c)) and previously served five separate terms in prison as described in section 667.5, subdivision (b). In October 2012, defendant’s counsel expressed doubt as to defendant’s competence to stand trial. The trial court set a section 1368 hearing to determine defendant’s competence. At the section 1368 hearing in December 2012, the trial court determined defendant to be competent to stand trial and reinstated the criminal proceedings. Defendant later pled no contest to assault with a deadly weapon and admitted the great bodily injury enhancement as well as the prior strike. In exchange for defendant’s plea, the People agreed to strike the remaining allegations. The People also moved to dismiss two trailing misdemeanor cases identified in the record as “1069” and “1584.” The trial court granted the People’s motion. In accordance with his plea, the trial court sentenced defendant to serve an aggregate term of 12 years in state prison: the upper term of four years in state prison for assault with a deadly weapon, a consecutive term of three years for the great bodily injury enhancement, and another consecutive term of five years for the prior strike. The trial court also ordered defendant to pay various fines and fees and awarded him 327 days of custody credit (285 actual and 42 conduct). Defendant appeals. He did not seek a certificate of probable cause (§ 1237.5). We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d