People v. Widby CA2/6

Filed 8/19/21 P. v. Widby CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B304865 (Super. Ct. No. TA138124) Plaintiff and Respondent, (Los Angeles County)

v.

JOSEPH BERNARD WIDBY,

Defendant and Appellant.

A jury found Joseph Widby guilty of assault with a deadly weapon (count 1; Pen. Code, § 245, subd. (a)(1)1), battery with serious bodily injury (count 2; § 243, subd. (d)), and misdemeanor vandalism (§ 594, subd. (a)). The jury also found as to count 1 that Widby personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Widby admitted two of four charged prior strike convictions. (§§ 667.5, subd. (b); 667, subd. (a)(1).) At sentencing, the trial court struck all but one of the prior strike convictions

1 All statutory references are to the Penal Code.

and all the prior prison term enhancements pursuant to section 1385. The trial court sentenced Widby to 21 years, including enhancements, on count 1. The court sentenced Widby to three years on count 2 to run concurrently with the sentence on count 1. The court sentenced Widby to six months in jail on the vandalism charge. We amended the judgment to stay execution of the sentence on count 2 pursuant to section 654. In all other respects, we affirmed. (People v. Widby (Jan. 31, 2017, B269909) [nonpub. opn.].) On remand, the trial court resentenced Widby to 21 years. He appeals his sentence. We appointed counsel to represent Widby in this appeal. After examining the record, he filed a brief raising no issues. On June 22, 2021, we advised Widby by mail that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. Widby replied with an extensive brief challenging his original convictions based on matters largely, if not exclusively, outside of the record. But we affirmed his convictions in the previous appeal in 2017. That appeal has long since been final. Our opinion in the previous appeal affirming his convictions is now law of the case and cannot be challenged in this appeal. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 459, p. 515.) The only question in this appeal is whether the trial court erred in changing the sentence for count 2 from a concurrent term to stayed. Given that we instructed the trial court to do so, there is no arguable issue on appeal. We have reviewed the entire record and are satisfied that Widby’s attorney has fully complied with his responsibilities and