IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 11, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MARCELANO WILSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F06289)
The opinion of the court was delivered by: Mauro , J.
P. v. Wilson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Marcelano Wilson asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error and no entitlement to additional presentence credit, but we have identified certain corrections that should be made to the amended abstract of judgment. We will affirm the judgment and direct the trial court to make the identified corrections to the amended abstract of judgment.
Erick Demetreous Hill was riding a light rail train on September 23, 2010. He was talking on a cellular telephone using an earpiece. Defendant suddenly got up from his seat on the train, said "[f]uck this," and punched Hill in the face, causing Hill to fall into the train's stairwell. Defendant then said, "[w]here I'm from we don't allow that."
Defendant had been sitting on the train with acquaintance Jessica Belcher, and defendant's conduct came as a complete surprise to her. When defendant returned to his seat, Belcher's friend Arianna Patterson yelled at defendant and asked why he hit Hill. Defendant responded, "[b]ecause where I'm from we hit people like that." Patterson later told investigating officers that defendant may have hit Hill because he "looked homosexual," in that he was wearing tight clothes and perhaps had made some gesture or movement that she could not explain.
Hill was taken by ambulance to a medical center. He received stitches under his right eye and on his scalp.
Defendant testified that he was an amateur boxer who trained daily. He admitted noticing Hill on the train conversing on his telephone. Defendant said he could not hear most of Hill's conversation, but at one point defendant said he heard a comment that made him feel sad. Defendant indicated he heard the word "loser," which triggered a painful memory of losing a boxing match that he believed he should have won. After the match, defendant said he was teased incessantly about having lost the fight. After hearing the word "loser," defendant said he approached Hill and asked, "[w]hat did you say to me?" Hill looked at defendant with surprise but did not say anything. Defendant punched Hill on the right side of his face, claiming he "just reacted. There was no thought behind it." Defendant explained that in boxing he was trained to react and not to think.
A jury convicted defendant of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), found that he personally inflicted great bodily injury in the commission of the offense (Pen. Code, § 12022.7, subd. (a)), and deadlocked on an allegation that he committed the offense for the purpose of interfering with the victim's perceived sexual orientation (Pen. Code, § 422.75, subd. (a)). The jury acquitted defendant on an alternative count of battery with serious bodily injury. (Pen. Code, § 243, subd. (d).) The trial court found that, by committing the present offense, defendant violated his probation in three unrelated cases.
Defendant was sentenced to prison for the upper term of four years plus three years for the enhancement. A concurrent term of two years was imposed in an unrelated case. Defendant was awarded 173 days of custody credit and 25 days of conduct credit.*fn1 The trial court ordered defendant to pay victim restitution and also ordered him to pay a $700 restitution fine (Pen. Code, § 1202.4), a $700 restitution fine suspended unless parole is revoked (Pen. Code, § 1202.45), a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), a $287.78 booking fee and a $59.23 classification fee (Gov. Code, § 29550.2).
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 elapsed, and we 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.
Nonetheless, we have identified certain corrections that should be made to the amended abstract of judgment. We will direct the trial court to make the identified corrections.
The judgment is affirmed. The trial court is directed to correct the amended abstract of judgment to reflect that defendant was found guilty of assault by means of force likely to produce great bodily injury instead of "assault w/deadly weapon w/likel[i]hood of GBI," the enhancement count number is 2(A), not "1," and defendant was awarded 173 days of custody credit, not 176. The trial court is also directed to forward a certified copy of the corrected amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: ROBIE , Acting P. J. BUTZ , J.