People v. Elliott CA2/1

Filed 12/27/13 P. v. Elliott CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B248231

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA093117) v.

WILLIE O. ELLIOTT, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed. ______ Carey D. Gorden, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. ______

An information, filed on September 18, 2012, charged Willie O. Elliott, Jr., with one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1 and specially alleged a great-bodily-injury enhancement (§ 12022.7, subd. (a)). The information specially alleged that Elliott had suffered three prior serious or violent felony convictions or juvenile adjudications that qualified as strikes under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that two of them, serious felony convictions, subjected him to five-year enhancements under section 667, subdivision (a)(1). It also specially alleged that Elliott had served four prior prison terms within the meaning of section 667.5, subdivision (b). According to the preliminary hearing transcript, on the afternoon of August 15, 2012, Elliott and another man approached Jeffrey Condon in Lincoln Park and began an argument with him. The man with Elliott pushed Condon to the ground, and Elliott raised his foot “high in the air” and stepped on Condon’s leg. When police arrived, Condon was lying on his back on the grass being treated by paramedics; “it appeared that the foot and the leg were not in the proper position.” Condon’s leg was broken in several places and required surgery to repair. After initially entering a not guilty plea and denying the special allegations, on November 14, 2012, Elliott withdrew his not guilty plea and pleaded no contest to a violation of section 245, subdivision (a)(4). Elliott also admitted the truth of the special allegations that he had inflicted great bodily injury on Condon pursuant to section 12022.7, subdivision (a), and that he had served four prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Elliott to 11 years in state prison, consisting of the upper term of four years for the section 245, subdivision (a)(4), conviction, plus three years for the great-bodily-injury enhancement and one year for each of the four prior prison terms. The court, however, suspended execution of sentence and placed Elliott on three years formal probation. As conditions