People v. Cervantes CA4/1

Filed 5/8/23 P. v. Cervantes CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081063

Plaintiff and Respondent,

v. (Super. Ct. No. SCE403126)

EMILIO ORTIZ CERVANTES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kenneth K. So, Judge. Affirmed. Emilio Ortiz Cervantes, in pro. per.; and Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. A jury convicted Emilio Ortiz Cervantes of assault with deadly weapon

(Pen. Code,1 § 245, subd. (a)(1)) and found he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Cervantes admitted a serious felony prior conviction (§ 667,subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)).

1 All further statutory references are to the Penal Code.

The court selected the upper term for the assault conviction, which was doubled due to the strike prior. The total term imposed for the conviction and enhancements was 16 years in prison. Cervantes appealed and this court affirmed the conviction and true findings on the enhancements. The court remanded the case for resentencing in light of recent legislative changes. (People v. Cervantes (May 16, 2022, D079691).) On remand, the trial court selected the middle term sentence for the assault charge, thereby reducing Cervantes’s term to 14 years in prison. Custody credits were corrected. Cervantes filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Cervantes the opportunity to file his own brief on appeal. He has responded by filing a supplemental brief. We will discuss his submission later in this opinion.