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People v. Grimes

March 16, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOHN ROBERT GRIMES, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Amador County, David S. Richmond, Judge. Affirmed. (Super. Ct. No. 05CR8504).

The opinion of the court was delivered by: Morrison, J.*fn2

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Defendant John Robert Grimes entered unconditional pleas of guilty to battery with serious bodily injury (Pen. Code, § 243, subd. (d), further section references are to this code; count I) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count II). He was sentenced on count I to state prison for the low term of two years with 141 days of presentence credit. Sentence on count II was stayed pursuant to section 654.

On appeal, defendant contends the trial court abused its discretion by imposing a prison sentence rather than granting him probation. We shall affirm the judgment.

In the published portion of this opinion we discuss the importance of careful handling of notices of appeal.

FACTS

Because the matter was resolved without trial, our statement of facts is taken from the probation officer‟s presentence report.

Defendant started a "verbal argument" with the female victim, whom he considered to be his girlfriend, at the bar where she worked. Defendant was thrown out of the bar and later went to the victim‟s home where he started arguing with her again. This time the argument became physical: defendant choked the woman to unconsciousness, leaving bruising on her neck. Another visitor to the home helped the victim pull away from defendant.

When the victim sought medical treatment the next afternoon, she was complaining of difficulty swallowing, neck pain, eye sensitivity to light, and a headache. An examining doctor indicated that the woman‟s injuries -- blood vessel hemorrhaging in both eyes and obvious marks on her neck -- were consistent with her having been choked.

When contacted by police, defendant admitted that he had pushed the victim onto the bed and had strangled her with enough pressure to cause bruising.

DISCUSSION

I.

The offense occurred on the night of August 20, 2005. Defendant entered his plea on October 14, 2005. He was sentenced on November 23, 2005, and he filed his notice of appeal that same day.

The superior court clerk must "promptly mail" to the Court of Appeal notification of the filing of a notice of appeal. (Cal. Rules of Court, rule 8.304(c)(1); further rule references are to these rules.) "The failure of a court reporter or clerk to perform any duty imposed by statute or these rules that delays the filing of the appellate record is an ...


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