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December 1, 2010


P v. Pepitone CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment.

Defendant Michael Thomas Pepitone punched his girlfriend and the mother of his children, Erica V., in the face while they drove from Erica V.'s place of employment to their apartment complex. Having received an email informing him that Erica V. had been seen in the arms of another man, defendant decided to confront her while she was at work. When Erica V. told defendant that she was afraid to go outside to meet with him, defendant assured her that he would not hit her. Erica V. then walked with defendant to her car and got in the passenger seat. As defendant drove Erica V. back to their apartment complex, he punched her in the face, saying: "Did you really think I wasn't gonna hit you?" The blow bruised Erica V.'s left cheek and cut her above the left eye.

When they reached the apartment complex, Erica V. got out of the car and ran to apartment manager Rick R.'s apartment, screaming: "Rick, help, he's trying to kill me." Blood flowed from the cut above Erica v.'s eye as Rick R. helped her inside and locked his metal security door. Rick R.'s wife called 911. While "bleeding very badly," an emotional and terrified Erica V. informed the 911 operator that defendant had "punched [her] in the face." At this point, defendant had reached the security door and was pleading with Erica V. to come outside. Through the metal screen on the door, Rick R. noticed blood on defendant's right hand. Defendant left.

When police arrived a short time later, Erica v. told one of the officers that defendant had punched her in the face. Erica v. also told both Rick R. and Deborah M., a friend who took her to an urgent care facility for medical treatment, that defendant had punched her in the face. At trial, both defendant and Erica v. testified that, instead of punching Erica v. in the face, defendant was driving recklessly, and when Erica v. punched him several times, he slammed on the brakes, causing her face to slam into the dash board. Erica v.'s testimony in this regard allowed her prior inconsistent statements to the police officer, Rick R., and Deborah M. to be admitted into evidence for their truth. (Evid. Code, § 1235; People v. Avila (2006) 38 Cal.4th 491, 579.) The jury did not believe defendant's and Erica v.'s version of events.

Defendant was charged with one count of willful infliction of corporal injury on a cohabitant. (Pen. Code, § 273.5, subd. (a).) He pleaded not guilty and the matter went to trial before a jury. On the second day of trial, defendant moved for appointment of alternate counsel. Defendant's motion was denied. Defendant then moved to represent himself. This motion was also denied. Defendant was convicted.

The trial court suspended imposition of sentence, placed defendant on three years' formal probation, and ordered him to serve 90 days in the county jail. As further terms of probation, defendant was ordered to complete 100 hours of community service and to complete a 52-week batterer's treatment program. The court also ordered defendant to pay a $200 restitution fine (Pen. Code, § 1202.4) and stayed a second restitution fine of $200 pending defendant's successful completion of probation (Pen. Code, § 1202.44). Defendant was further ordered to pay a battered women's shelter fee of $300 (Pen. Code, § 1203.097, subd. (a)(11)(A)), a domestic violence program fee of $400 (Pen. Code, § 1203.097, subd. (a)(5)), a $30 court security fee (Pen. Code, § 1465.8), and a $30 conviction assessment fee (Gov. Code, § 70373). The court also ordered defendant to pay $164 per month in probation supervision fees and $736 for the presentence investigation report (Pen. Code, § 1203.1b). Finally, defendant was ordered to pay $420 in public defender fees, stayed pending a hearing on defendant's ability to pay (Pen. Code, § 987.8).

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.


The judgment is affirmed.


We concur: BLEASE , Acting P. ...

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