People v. Wilburn CA3

Filed 8/10/23 P. v. Wilburn CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C096581

Plaintiff and Respondent, (Super. Ct. No. 21FE009379)

v.

TERRENCE LAMAR WILBURN,

Defendant and Appellant.

Appointed counsel for defendant Terrence Lamar Wilburn filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the record, we will affirm the judgment.

1

BACKGROUND

The prosecution charged defendant with threatening a public officer (Pen. Code, § 71; count one)1 and misdemeanor battery against a peace officer (§ 243, subd. (b)). The prosecution also alleged defendant had two prior strike convictions: A 2017 assault with a deadly weapon (§ 245, subd. (a)(1)) and a 2002 assault with intent to commit a felony (§ 220). Defendant entered a Faretta2 waiver and proceeded in the case pro se. The prosecution later dismissed count two. Before trial, defendant filed a variety of motions, including discovery motions and motions to dismiss for lack of a speedy preliminary hearing and/or trial. At trial, parole agent Joshua Grey testified for the prosecution. As part of his duties, he conducted home visits and random drug tests of parolees. On the day of the offense, Agent Grey visited defendant at a Travelodge to conduct a home visit. Defendant’s parole program involved gift card incentives in which defendant would earn gift cards for completing designated activities. On the day before the offense, defendant had argued with Grey on the phone about whether he would be getting gift cards. When Grey knocked on defendant’s door, defendant opened the door, retreated to the back of the room, and yelled, “Just give me the damn drug test, because this is the last one you’re going to get.” Agent Grey approached defendant with a urinalysis bottle and defendant slapped his hand, knocking the bottle to the floor. Grey asked defendant to explain his behavior, and defendant “took an aggressive stance,” and said, “What is your bitch ass going to do about it?” Grey thought the situation was “becoming unsafe” and went to the stairwell outside the room to call his supervisor. As Grey went down the steps, defendant