People v. Palmer CA4/1

Filed 10/6/23 P. v. Palmer CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D081426

Plaintiff and Respondent,

v. (Super. Ct. No. SCD292521)

FREDERICK JOSEPH PALMER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Sally Patrone, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Arlyn Escalante, Deputy Attorneys General, for Plaintiff and Respondent.

MEMORANDUM OPINION1

In August 2021, Frederick Joseph Palmer was ejected from a strip club. Outside, three club employees told Palmer to leave, stating the establishment would be closing in five minutes. Angry at being denied reentry, Palmer punched one of the club’s managers in the face, knocking the man unconscious to the ground and breaking four teeth. Based on this punch, a jury convicted Palmer of assault likely to

produce great bodily injury (Pen. Code2, § 245, subd. (a)(4), count 1) and battery causing serious bodily injury (§ 243, subd. (d), count 2)). As to count 1, the jury found true the allegation that Palmer personally inflicted great bodily injury (§ 12022.7. subd. (a)). At a later bench trial, the court found that Palmer had been convicted in 1993 of aggravated assault causing great bodily injury (§§ 245, subd. (a)(1), 12022.7), supporting the nickel prior and prior strike allegations. In his sentencing brief, Palmer asked the court to strike the prior strike and nickel prior. (See § 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529−530.) Noting the underlying conviction was nearly 30 years old, he claimed his subsequent criminal history was not indicative of progressive criminality. In addition, Palmer highlighted that he was unarmed at the time of the incident and cooperated with police who arrived at the scene. Claiming he had never been to a strip club before and did not know the rules, he suggested the assault and battery were an attempt