People v. Borges CA5 ( 2015 )

Filed 9/1/15 P. v. Borges CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F069050
Plaintiff and Respondent,
(Kings Super. Ct. No. 13CM7254)
v.
MARCUS BORGES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
INTRODUCTION
Appellant/defendant Marcus Borges, an inmate at Corcoran State Prison, attacked
another inmate, and pleaded no contest to assault by means of force likely to produce
great bodily injury while confined in a state prison. He was sentenced to two years
pursuant to a negotiated disposition. On appeal, his appellate counsel has filed a brief
that summarizes the facts with citations to the record, raises no issues, and asks this court
to independently review the record. (People v. Wende (1979) 25 Cal. 3d 436 (Wende).)
We will affirm.
FACTS
On July 14, 2012, defendant and John Hovarter (Hovarter) were cellmates at
Corcoran State Prison. At 6:30 p.m., Correctional Officer Rolie Simpliciano was on duty
as the inmates returned to their cells after dinner. He noticed a commotion on the upper
tier and saw defendant and Hovarter aggressively hitting Inmate Jetton (Jetton) with their
clenched fists. Defendant and Hovarter were punching Jetton in the face and upper torso.
Jetton backed up, raised his arms, and tried to cover his face.
The correctional staff responded to the tier to break up the fight and ordered all the
inmates on the floor. Correctional Officer Edgar Mendez arrived on the upper tier and
testified defendant and Jetton were on the floor. However, defendant’s hand was around
Jetton’s throat and he was choking him. Jetton was bleeding from his forehead, he was
unresponsive, and his eyes were partially rolled back. Mendez ordered defendant to stop
choking Jetton. Defendant failed to comply with the order. He kept his hands around
Jetton’s throat until Mendez kicked him in the back, and then he released his hold.
Jetton suffered a three-centimeter laceration on his forehead and another laceration
on the back of his head, both of which required sutures. He also suffered a broken rib
and swelling and bruises on his chest and shoulder.
The officers found a makeshift bag on the floor about an inch away from Jetton’s
head. There were bloodstains on the bag, and it contained a hard metal object. The cell
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shared by defendant and Hovarter was searched, and the officers determined defendant’s
typewriter was missing several pieces.
Procedural History
On October 17, 2013, defendant and Hovarter were charged with count I, assault
with a deadly weapon while confined in a state prison (Pen. Code, § 4501); and count II,
assault by means of force likely to produce great bodily injury while confined in a state
prison (ibid.). Defendant was alleged to have one prior strike conviction, and Hovarter
had two prior strike convictions (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, subds. (a)–
(d)).
On December 11, 2013, both defendant and Hovarter accepted a “package offer”
and entered into negotiated dispositions. They pleaded no contest to count II for a
stipulated term of two years and dismissal of the prior strike allegations.
On January 10, 2014, defendant was sentenced to the lower term of two years, to
run fully consecutive to the term he was already serving in Los Angeles County case
No. BA289995-01.
On March 11, 2014, defendant filed a timely notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on July 7, 2014, we invited
defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
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