People v. Gaines CA1/2

Filed 12/4/13 P. v. Gaines CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A139110 v. MIQUELA LATRICE GAINES, (Solano County Super. Ct. No. FCR251957) Defendant and Appellant.

Following a physical altercation with a 12-year-old victim in a fast food restaurant, Miquela Latrice Gaines pleaded no contest to counts of assault (Pen. Code,1 § 245, subd. (a)), petty theft with a prior conviction (§§ 484, subd. (a), 666), and battery (§ 242). The court placed Gaines on supervised probation for three years. After Gaines admitted a second violation of her probation, the court sentenced her to three years in state prison, with credit for 588 days. Gaines moved for modification of her sentence, seeking additional credits. The court denied her motion and Gaines now appeals. Gaines’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) (see Anders v. California (1967) 386 U.S. 738 (Anders)), in which he raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (Kelly).) Counsel attests that Gaines was advised of her right to file a supplemental brief, but she has not exercised that right.

1 Unless indicated otherwise, subsequent statutory references are to the Penal Code.

1

We have examined the entire record in accordance with Wende. We agree with counsel that no arguable issue exists on appeal and affirm. I. Factual Background The facts stated below are taken from the initial probation department sentencing report. An employee of a fast food restaurant stated that on January 25, 2008, he observed Gaines and her daughter “beating up” a 12-year-old victim. The employee saw Gaines hit the victim in the head with her fist, grab her hair, and hit her head onto the floor and wall of the bathroom. The employee helped the victim leave the area and the victim’s cell phone fell from her pocket. Gaines picked up the cell phone and yelled, “ ‘Bitch, you ain’t getting no phone.’ ” A responding officer found the phone in Gaines’s pocket. Another witness saw Gaines hit the victim in the face and body and pull her hair. Gaines and her daughter pushed this witness when he attempted to intervene. BACKGROUND II. Procedural Background On July 9, 2008, the People filed an information charging Gaines with felony corporal injury to a child (§ 273d, subd. (a)) (count one); assault (§ 245, subd. (a)) (count two); felony petty theft with a prior conviction (§§ 484, subd. (a), 666) (count three); felony receiving stolen property (§ 496, subd. (a)) (count four); two counts of misdemeanor battery (§ 242) (counts five and eight); misdemeanor participation in a riot (§ 404, subd. (a)) (count six); and misdemeanor resisting arrest (§ 148, subd. (a)(1)) (count seven). Gaines entered a plea of not guilty on all counts. On January 12, 2009, Gaines changed her plea to no contest on counts two, three and five. The remaining counts were dismissed. On March 6, 2009, following production of a probation report, the court placed Gaines on three years of supervised probation, conditioned on serving 180 days in county jail. On April 20, 2009, the court referred Gaines to the alternative sentencing program and stayed her date to report to county jail.