People v. Hopkins CA2/2

Filed 11/13/13 P. v. Hopkins CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B246160

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA077024) v.

DONALD ANDREW HOPKINS,

Defendant and Appellant.

THE COURT:* Defendant Donald Andrew Hopkins appeals following his no contest plea to one count of battery upon a custodial officer in violation of Penal Code section 243.11 and admission of one prior strike conviction. In accordance with the plea bargain to which defendant agreed, the trial court sentenced him to the low base term of 16 months, doubled to 32 months because of the prior strike conviction. We appointed counsel to represent defendant on this appeal. On May 15, 2013, counsel filed an “opening brief” in which he stated that he had failed to find any arguable issues. On May 16, 2013, we informed defendant that he had 30 days in which to file a supplemental brief containing any issues he wished this

* BOREN, P. J ., ASHMANN-GERST, J., CHAVEZ, J. 1 All further references to statutes are to the Penal Code unless otherwise stated.

court to consider. On June 25, 2013, we granted defendant an extension of time. On July 16, 2013, defendant filed a supplemental brief in which he argues the following three grounds for appeal: (1) the trial court violated section 2900.5 by denying his motion regarding section 4019 and forcing him to go to state prison; (2) his appellate counsel’s refusal to address issues he has raised creates a constitutional question; and (3) this court must be judicially stopped from using the Pompa-Ortiz prejudice burden when addressing pretrial commitment violations after judgment. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519.) We obtain the facts from the transcript of the preliminary hearing, since there was no trial. Charles Ray Mitchell testified that he was working as a security guard at an apartment complex where defendant was a tenant on March 14, 2011. He observed a young lady letting a man into the complex by means of an unauthorized entrance, and Mitchell made the man go to the front entrance and sign in. Defendant later went to see Mitchell and berated him for “interfering in his damn business.” On the following day, defendant entered Mitchell’s office and told him he was a dead man. Defendant left and returned with a cane in his hand. He repeated that Mitchell was a dead man, raised the cane, and tried to hit Mitchell. Mitchell jumped up and grabbed the cane before he was struck. Mitchell wrestled defendant to the floor and choked him until defendant was subdued. Police were called, and they arrested defendant. When the detention officer attempted to obtain defendant’s fingerprints, defendant pulled away and began cursing and yelling. Other officers held defendant back, and defendant kicked the detention officer. While being taken out, defendant spat at the detention officer, and defendant’s spittle landed on the officer’s face. Defendant was charged in an amended information with assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 1) and battery upon a custodial officer in violation of section 243.1 (count 2). The information