Opinion
D076847
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. BRIAN PEREZ, Defendant and Appellant.
Brian Perez in pro. per.; and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF36761) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed. Brian Perez in pro. per.; and Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted Brian Perez of assault on a custodial officer by means of force likely to cause great bodily harm (Pen. Code, § 245.3; count 1) and mayhem (§ 203; count 2). The jury found Perez had personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court found true two alleged strike priors (§ 667, subd. (b)-(i)). Perez was sentenced to an indeterminate term of 25 years to life. Perez filed a timely appeal.
All further statutory references are to the Penal Code unless otherwise specified. --------
In December 2018, this court reversed the conviction for mayhem (count 2) and remanded the case for resentencing. (People v. Perez (Dec. 21, 2018, D072995) [nonpub. opn.].)
On remand, the trial court denied a defense motion to strike the "strike" priors (People v. Superior Court (Romero) (1996) 13 Cal.4th 497). The court again sentenced Perez to an indeterminate term of 25 years to life.
Perez again filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende.
We offered Perez the opportunity to file his own brief on appeal. Perez has filed a supplemental brief, which we will discuss later in this opinion.
STATEMENT OF FACTS
We take the facts of the offense from our opinion in People v. Perez, supra, D072995.
On July 27, 2016, Perez appeared in Brawley Superior Court for two hearings. The court ruled against him at both. When the hearings concluded, an Imperial County Sheriff's deputy escorted Perez, who was in custody at the time, back to the holding cell. Perez was wearing full restraints. As he entered the cell, he asked the deputy if he could use the restroom. After the deputy removed Perez's right handcuff, Perez quickly and unexpectedly pulled his hand away and punched the deputy solidly twice on his left temple, around his eye socket. As the deputy stepped backward from the force of the first two punches, Perez punched him a third time but the deputy barely felt this punch because he was "pulling back" as Perez hit him. The deputy bounced backward, striking his head and shoulder on the metal doorframe. He was dizzy and felt pain in his head and shoulder; he was bleeding from a cut above his left eye and could barely move his right arm. He felt a piece of tooth in his mouth with his tongue and noticed that a piece of one of his molars was missing.
The deputy was transported via ambulance to the hospital emergency room, where he complained of shoulder pain and dizziness. He had a laceration above his left eye, a ruptured blood vessel on his eye, an abrasion on the right side of his head and another on his face, and a fractured tooth.
The emergency room physician treated the laceration with a skin adhesive. She gave the deputy a tetanus shot and three pain medications and referred him to a dentist for the tooth fracture. The physician explained at trial that the tooth fracture was an "Ellis Type I" fracture, meaning damage occurred to the outermost layer of tooth, the enamel. An "Ellis Type I" fracture is the "least severe" on the Ellis classification system. In terms of location, the fractured tooth was on the top right-hand side—the second tooth starting from the back of the mouth. The physician testified that human teeth do not grow back. She further testified that she saw no signs of bleeding gums or cuts on the deputy's inner cheek, and that the tooth was not loose.
The deputy underwent dental treatment to fix the fractured tooth. The dentist ground down the deputy's tooth and repaired it with a filling. The deputy described the dental procedure as "just a filling" that lasted no more than 40 minutes.
The deputy was off work for two days and on modified ("light") duty for approximately one week. He had two or three weeks of physical therapy to treat his injured shoulder and continues to experience pain in that area.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks this court to review the record as mandated by Wende. To assist this court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified two possible issues that he considered in evaluating the merits of this appeal:
1. On remand, did the trial court err in declining to strike the "strike" priors; and
2. Did the trial court err in resentencing Perez to 25 years to life under the "Three Strikes" law.
Perez has filed a supplemental brief on his own behalf. Perez basically challenges the trial court's decision to deny his motion to strike the "strike" priors. He argues the court abused its discretion in denying the motion, and challenges some of the testimony underlying the conviction, which was addressed in our prior opinion. Perez contends a life sentence for his offense in this case is unfair. Based upon our review of the record, we conclude Perez has not raised any arguable issues for reversal on appeal.
We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Perez on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.