The People v. Garman CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCN298061
- Trial judge
- Runston G. Maino
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, Judith D. McConnell
Analysis
The trial court convicted Jason James Garman of mayhem and assault with force likely to produce great bodily injury, sentenced him to 20 years in prison, and denied probation. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues on appeal after reviewing the record pursuant to Wende and Anders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for mayhem (Pen. Code, § 203) and assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))“A jury convicted Jason James Garman of one count of mayhem (Pen. Code,1 § 203) and one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)).” | unclear | not reached | unsure The opinion does not review the sufficiency of the evidence or the legal validity of the convictions on the merits. It only notes the convictions occurred and states that the court's independent review of the record did not reveal any reasonably arguable appellate issues. Therefore, the appellate court did not evaluate the correctness of the trial court's application of the law to the facts for these counts. |
Jury instruction on mayhem requiring proof of serious bodily injury“Whether the inclusion of a requirement that the prosecutor prove serious bodily injury in the jury instruction on mayhem constituted prejudicial error?” | de novo | not reached | agree with court Appellate counsel identified this as a possible but not arguable issue, relying on People v. Santana (2013) 56 Cal.4th 999, which held that serious bodily injury is not an element of mayhem. The court accepted this reasoning, concluding that the additional burden did not cause prejudice and thus no reasonably arguable issue existed. The court did not independently analyze the instruction but relied on the binding authority cited by counsel. |
Denial of probation and sentencing to 20 years in prison“The court denied probation and sentenced Garman to a determinate term of 20 years in prison.” | abuse of discretion | not reached | unsure The opinion does not contain any discussion regarding the sentencing or the denial of probation. The court's Wende review found no reasonably arguable issues, implying that no sentencing error was identified or argued. Therefore, the appellate court did not review the trial court's sentencing decision. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to file a brief identifying any arguable issues and the court to independently review the record for error when counsel finds none.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal when no arguable issues exist, requiring a brief identifying potential issues and court review.
- relied: People v. Santana (2013) 56 Cal.4th 999 — Holds that prosecutors do not have to prove serious bodily injury to prove mayhem, meaning instructions requiring such proof do not prejudice defendants.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for reviewing appeals where counsel finds no arguable issues. It appropriately relies on People v. Santana to dismiss the one potential issue regarding jury instructions, as that case is binding and directly on point.
How this analysis was made · dispute it
unusual dispositionA San Diego County jury convicted Jason James Garman of mayhem and assault with force likely to produce great bodily injury, with a great-bodily-injury enhancement, and the trial court found prior-conviction allegations true and sentenced him to 20 years in prison. On appeal, appointed counsel filed a Wende/Anders brief identifying one possible issue (the mayhem instruction's serious-bodily-injury requirement), Garman filed a supplemental letter brief complaining about trial counsel, and the Court of Appeal independently reviewed the record, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Jury instruction on mayhem that required the prosecution to prove serious bodily injury“That case found that prosecutors did not have to prove serious bodily injury in order to prove mayhem. Hence the court concluded the additional burden placed on the prosecution in earlier versions of the instruction did not cause prejudice to defendants.” | de novo | harmless error | agree with court Under People v. Santana (2013) 56 Cal.4th 999, adding a serious-bodily-injury element to the mayhem instruction imposes an extra burden on the prosecution and therefore cannot prejudice the defendant. The court correctly applied that controlling Supreme Court authority; the instruction, if erroneous at all, only benefitted Garman. |
Judgment of conviction and 20-year sentence (independent Wende review of the entire record)“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738 and have not found any reasonably arguable appellate issues.” | unclear | correct | agree with court The opinion follows the Wende/Anders procedure: counsel's brief, an invitation to the defendant to file a supplemental brief, and independent review of the record. Nothing recited in the opinion (eyewitness identification by Boughner, medical testimony of permanent eye injury, true findings on priors) suggests an arguable issue the court overlooked, though the opinion gives little detail about the sentencing calculation. |
Garman's supplemental claims of ineffective assistance of trial counsel (failure to let him testify, inadequate examination of witnesses, failure to call exculpatory witnesses, ADA-related complaints)“It appears that Garman's complaints are based on alleged acts or failures which are not contained in the record on appeal. Thus his remedy, if any, will have to be by way of a petition for writ of habeas corpus filed in the trial court.” | unclear | not reached | agree with court Ineffective-assistance claims that depend on facts outside the appellate record are properly relegated to habeas corpus rather than decided on direct appeal, which is settled California law. The court reviewed the record for support, found none, and correctly directed Garman to habeas; it did address the supplemental brief as required, though without citing People v. Kelly or People v. Mendoza Tello. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal lacking in merit may file a brief referring to anything in the record that might arguably support the appeal, after which the court reviews the record.
- relied: People v. Santana (2013) 56 Cal.4th 999 — Serious bodily injury is not an element of mayhem; an instruction that required the prosecution to prove it increased the People's burden and did not prejudice the defendant.
- missed: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective-assistance claims that depend on matters outside the appellate record should be raised by petition for writ of habeas corpus rather than on direct appeal.
- missed: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal the Court of Appeal must address in its opinion the contentions raised in the defendant's supplemental brief and explain why they fail; the opinion did so but did not cite Kelly.
The appellate opinion: sound with gaps — The opinion correctly applies Santana to dispose of the only possible issue identified by counsel and properly channels Garman's record-less ineffective-assistance complaints to habeas corpus, which is the defensible result. It omits citation to the authorities governing treatment of a defendant's supplemental brief (Kelly) and off-record ineffective-assistance claims (Mendoza Tello), and gives no detail on its review of the sentence, so the reasoning is sound but thinly supported.
Opinion
Filed 10/1/13 P. v. Garman 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, D063178
Plaintiff and Respondent, v. (Super. Ct. No. SCN298061)
JASON JAMES GARMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.
Cannon & Harris and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
A jury convicted Jason James Garman of one count of mayhem (Pen. Code,1 § 203) and one count of assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found Garman personally inflicted great bodily injury on the 1 All further statutory references are to the Penal Code unless otherwise specified. victim (§ 12022.7, subd. (a)). The court thereafter found true two prison priors within the meaning of section 667.5, subdivision (b); one prison prior within the meaning of section 667.5, subdivision (a); and one strike prior within the meaning of section 667, subdivisions (b) through (i).
The court denied probation and sentenced Garman to a determinate term of 20 years in prison. Garman filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising a possible, but not arguable issue. We offered Garman the opportunity to file his own brief on appeal.
Garman has filed a letter brief which we will address below.
STATEMENT OF FACTS
On October 20, 2011, 16-year-old Bryan K. and Victoria D., a 16-year-old female friend, were at the home of their mutual friend Travis C., sometime around 8:00 or 9:00 p.m. Fifteen-year-old Travis lived with his mother, Diane C. Garman had been Diane's boyfriend and had lived at the house for a couple of months. Garman had moved out of the house prior to October 20.
The three teenagers were walking around the back yard of the house when Diane told them to leave. About the same time a man ran up and struck Bryan on the eye with an overhand strike, knocking him to the ground. The man had a shiny object in his hand, which Bryan thought was a gun. The man, who was dressed in black and wearing a "hoodie," ran away. Bryan suffered severe injury to his eye. The medical testimony established Bryan will never be able to see with that eye.
2 Witness Olie Boughner was staying at the house in the front of the lot on the day of the incident. He testified he had met Garman at the house and that he knew Garman and his brothers.
Boughner testified that he observed Garman run onto the lot and strike Bryan in the face. Boughner was only two feet away from Garman when he looked at Garman's face. It appeared that Garman had a small silver revolver in his hand.
Garman ran out of the house and down 11th Street. None of the teenagers was able to identify the assailant.
Garman was arrested by Escondido Police. Garman told police he had been home in bed and that he did not know that address and he had not been there.
Garman's stepfather testified that when he went to bed at about 11:00 p.m. that night, Garman was already in bed.
DISCUSSION
I
APPELLATE COUNSEL'S BRIEF
As we have previously noted, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies one possible, but not arguable issue:
Whether the inclusion of a requirement that the prosecutor prove serious bodily injury in the jury instruction on mayhem constituted prejudicial error?
3 Appellate counsel directs our attention to People v. Santana (2013) 56 Cal.4th 999. That case found that prosecutors did not have to prove serious bodily injury in order to prove mayhem. Hence the court concluded the additional burden placed on the prosecution in earlier versions of the instruction did not cause prejudice to defendants.
The same reasoning applies in this case. Thus, no reasonably arguable issue is presented regarding this issue.
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738 and have not found any reasonably arguable appellate issues. Competent counsel has represented Garman on this appeal.
II
GARMAN'S SUPPLEMENTAL BRIEF
As we have previously indicated, Garman has filed a letter brief in response to our invitation. Unfortunately, the brief is simply a listing of complaints about counsel, with no reference to anything in the record on appeal. Garman claims he is developmentally disabled and that counsel failed to read materials to him. He states he wanted to testify but was not allowed to do so by counsel. Garman further states counsel was not competent in examining witnesses and failed to call exculpatory witnesses. Finally, Garman claims he is entitled to a new trial with an Americans with Disabilities Act qualified attorney.
Garman does not make any reference to the record nor does he indicate how counsel was deficient or what exculpatory evidence might have been omitted. We have reviewed the entire record to determine if there is any basis in this record for a reasonably 4 arguable issue regarding counsel's representation at trial. Our review has not revealed the basis for any such issue.
It appears that Garman's complaints are based on alleged acts or failures which are not contained in the record on appeal. Thus his remedy, if any, will have to be by way of a petition for writ of habeas corpus filed in the trial court.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
Cites, in this corpus
- People v. Santana S198324 · 2013-06-10
- People v. Wende Crim. 20851 · 1979-10-12