People v. Cota CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS279566
- Trial judge
- Stephanie Sontag
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), Judith L. Haller, Patricia D. Benke
Analysis
The trial court convicted Fernando Cota of battery with serious bodily injury and assault by means likely to produce great bodily injury, sentencing him to nine years in state prison. The Court of Appeal affirmed the judgment after a Wende/Anders review found no reasonably arguable issues on appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Sufficiency of evidence for the great bodily injury enhancement“Our review of the entire record under Wende and Anders has disclosed no reasonably arguable appellate issues.” | de novo | not reached | agree with court The court performed a Wende/Anders review of the record and concluded that no reasonably arguable issues existed, thereby affirming the judgment without addressing the specific merits of the sufficiency of evidence argument raised by counsel. |
Sufficiency of reasons for imposing the upper term sentence“Our review of the entire record under Wende and Anders has disclosed no reasonably arguable appellate issues.” | abuse of discretion | not reached | agree with court The court performed a Wende/Anders review of the record and concluded that no reasonably arguable issues existed, thereby affirming the judgment without addressing the specific merits of the sentencing reasons argument raised by counsel. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the entire record for error when no issues are raised.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed appellate counsel to file a brief identifying potential issues and request the court to review the record.
The appellate opinion: sound — The opinion correctly applies the Wende/Anders framework for reviewing a record where counsel raises no specific issues. It accurately concludes that the record does not support a reasonably arguable claim of error regarding the sufficiency of evidence or sentencing reasons.
How this analysis was made · dispute it
unusual dispositionA jury convicted Fernando Cota of battery with serious bodily injury and assault by means likely to produce great bodily injury, found a great bodily injury enhancement true, and after Cota admitted two prison priors the trial court sentenced him to nine years, including the upper term on the assault count. On appeal counsel filed a Wende brief identifying two potential issues, Cota filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and sentence as a whole, reviewed under People v. Wende / Anders v. California independent review of the record“Our review of the entire record under Wende and Anders has disclosed no reasonably arguable appellate issues.” | de novo | correct | agree with court The court followed the required Wende procedure: counsel filed a no-issue brief with potential issues, the defendant was invited to file his own brief and did not, and the court independently reviewed the entire record. The opinion also satisfies People v. Kelly's requirement that a Wende opinion recite the facts, procedural history, and the issues counsel flagged. Nothing in the recited record suggests an arguable issue was overlooked. |
Sufficiency of the evidence supporting the jury's finding that Cota personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a))“(1) whether there was sufficient evidence to support the jury's finding that Cota inflicted great bodily injury on Gallegos” | unclear | correct | agree with court The opinion does not analyze the issue separately, but the recited facts show repeated punches to the face, a chin laceration requiring two sutures, a lip laceration requiring four sutures to prevent disfigurement, and a probable concussion. Under the substantial-evidence standard and the definition of great bodily injury as a significant or substantial injury beyond trivial or moderate harm, a jury could readily find great bodily injury on this record, so the court's implicit conclusion that the issue is not arguable is supportable. |
Imposition of the upper term of four years on the assault count and adequacy of the trial court's stated reasons“(2) whether the trial court stated sufficient reasons for imposing the upper term sentence.” | unclear | correct | unsure The court implicitly found no arguable issue in the upper-term sentence after reviewing the whole record, but the opinion does not describe the sentencing hearing, the reasons the trial judge stated, or whether any objection was made. Without that record the correctness of the sentencing choice cannot be independently verified from the opinion alone, although Cota's two admitted prison priors would ordinarily supply a valid aggravating factor. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound — The opinion follows the Wende/Anders procedure correctly, recites the facts and the potential issues counsel identified, confirms the defendant was given the chance to file his own brief, and states that independent review disclosed no arguable issues. The facts recited amply support the great bodily injury finding, and nothing in the opinion indicates any misreading of law, though as is typical of Wende opinions it offers no separate analysis of the flagged issues.
Opinion
Filed 7/19/16 P. v. Cota 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, D069049
Plaintiff and Respondent, v. (Super. Ct. No. SCS279566)
FERNANDO COTA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Fernando Cota of battery with serious bodily injury (Pen. Code, § 243, subd. (d))1 and assault by means likely to produce great bodily injury (§ 245, 1 All further statutory references are to the Penal Code. subd. (a)(4).) The jury found true the allegation that Cota personally inflicted great bodily injury on the victim Alfredo Gallegos, who was not an accomplice to the offense (§ 12022.7, subd. (a)). Cota admitted two prior prison convictions (§ 667.5, subd. (b)).
The court sentenced Cota to nine years in state prison, consisting of the upper term of four years on the assault count, a consecutive term of three years for the great bodily injury enhancement, and two one-year terms for the prison priors.
FACTS
On the morning of April 21, 2015, Cota and Gallegos were in a hallway of a jail in San Diego waiting to be transported by bus to San Diego County's South Bay Detention Facility (SBDF). Gallegos had been a member of the Varrios Chula Vista (VCV) gang for about 20 years but had decided to drop out of the gang. Cota was a member of the Otay gang, VCV's main rival.
Cota showed Gallegos a tattoo that read, "Fuck Chupa," which Gallegos understood to mean "Fuck Chula Vista." Gallegos took Cota's tattoo as a sign of disrespect and a threat. Cota said to Gallegos, "Do you want it now or later?" Gallegos indicated to Cota that he did not want to fight him. Gallegos sat behind Cota on the bus and the two engaged in casual conversation on the ride to SBDF. Gallegos thought the situation had "calmed down" and "everything was going to be fine."
When Cota and Gallegos arrived at the SBDF, they were placed in a holding tank and uncuffed. The holding tank was divided into two sections by a glass wall and sliding metal door that has a window on it. San Diego County Sheriff's Deputy Gustavo Reynoso was unchaining inmates on the other side of the glass wall from Cota and 2 Gallegos when he heard the sound of someone being punched. He looked into the adjacent cell and saw Cota punch Gallegos two or three times in the face. Gallegos fell to his knees and Cota punched him several more times in the face, causing him to fall backwards. Gallegos did not protect or defend himself. He tried to stand up but kept slipping on his blood that was on the floor. He was dazed, but eventually was able to reach a bench. Deputy Reynoso yelled at Cota to stop and then handcuffed him.
Gallegos was treated at a hospital for injuries resulting from the incident. A laceration on his chin required two sutures and a laceration on his lower lip required four sutures to prevent disfiguration of the lip. The doctor who treated Gallegos believed Gallegos also suffered a concussion.
DISCUSSION
Appellate counsel has filed a brief summarizing the facts and proceedings below but raising no specific issues or argument for reversal. Counsel has asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende), and has identified the following "potential issues" under Anders v. California (1967) 386 U.S. 738 (Anders): (1) whether there was sufficient evidence to support the jury's finding that Cota inflicted great bodily injury on Gallegos; and (2) whether the trial court stated sufficient reasons for imposing the upper term sentence.
We offered Cota the opportunity to file a brief on his own behalf, and he has not responded.
3 Our review of the entire record under Wende and Anders has disclosed no reasonably arguable appellate issues. Appellate counsel has competently represented Cota on appeal.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
HALLER, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12