People v. Kingery CA6

Filed 3/7/22 P. v. Kingery CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049415 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. 21CR01178)

v.

JASON ZACHARY KINGERY,

Defendant and Appellant.

I. INTRODUCTION Defendant Jason Zachary Kingery pleaded no contest to assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). 1 The trial court placed defendant on formal probation for 24 months. On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case but raises no issues. We notified defendant of his right to submit written argument on his own behalf within 30 days. We have received no written argument from defendant. Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have carefully reviewed the entire record and determined that there are no arguable issues on appeal. Following the California Supreme Court’s direction in

1 All further statutory references are to the Penal Code.

Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case. II. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background2 Santa Cruz County Sheriff’s Deputy Caitlin McBride contacted Kerwyn Brumble on March 17, 2021. Brumble reported that he had been threatened twice while conducting traffic control for a private company. Brumble told Deputy McBride that in mid-February, a vehicle came toward him at a high rate of speed while he was standing in an intersection. Brumble jumped out of the way, but the vehicle came back at a high rate of speed and pulled beside him. The driver said, “ ‘You fucking nigger,’ ” and, “ ‘I’m going to fucking kill you,’ ” and flipped Brumble off. Brumble is African American. Brumble continued to work but the vehicle turned around and drove toward him at approximately 15 miles per hour. Brumble had to jump out of the way to avoid being hit. The driver said, “ ‘You watch. I’m going to fucking kill you.’ ” Brumble did not report the incident initially because he thought it might have been “a one-time thing and hoped it wouldn’t happen again.” Brumble told Deputy McBride that a second incident occurred on March 17 “in the same neighborhood with the same person in the same vehicle.” Brumble stated that he heard a vehicle approaching him and that his partner yelled, “[W]atch out.” Brumble jumped out of the road and saw that it was the same vehicle as the month before. The driver pulled within feet of Brumble and said, “ ‘I told you I was gonna fucking kill you.’ ” Brumble believed that the vehicle would have hit him if he had not jumped out of the way. Brumble was fearful because “ ‘it had now happened twice.’ ”