People v. Cervantes CA4/1 ( 2023 )

Filed 5/8/23 P. v. Cervantes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081063
Plaintiff and Respondent,
v. (Super. Ct. No. SCE403126)
EMILIO ORTIZ CERVANTES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kenneth K. So, Judge. Affirmed.
Emilio Ortiz Cervantes, in pro. per.; and Aurora Elizabeth Bewicke,
under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Emilio Ortiz Cervantes of assault with deadly weapon
(Pen. Code,1 § 245, subd. (a)(1)) and found he personally inflicted great bodily
injury on the victim (§ 12022.7, subd. (a)). Cervantes admitted a serious felony
prior conviction (§ 667,subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)).
1 All further statutory references are to the Penal Code.
The court selected the upper term for the assault conviction, which was
doubled due to the strike prior. The total term imposed for the conviction and
enhancements was 16 years in prison.
Cervantes appealed and this court affirmed the conviction and true
findings on the enhancements. The court remanded the case for resentencing
in light of recent legislative changes. (People v. Cervantes (May 16, 2022,
D079691).)
On remand, the trial court selected the middle term sentence for the
assault charge, thereby reducing Cervantes’s term to 14 years in prison.
Custody credits were corrected.
Cervantes filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Cervantes the opportunity
to file his own brief on appeal. He has responded by filing a supplemental
brief. We will discuss his submission later in this opinion.
STATEMENT OF FACTS2
Appellate counsel has provided an accurate summary of the facts of the
offense. We will incorporate that summary to provide background for the case.
On November 11, 2020, at around 2:20 p.m., Joann C. walked over to a
bus stop in El Cajon. She noticed a man sitting at a bench. She sat down.
As Joann made small talk with the man, she noticed a folding knife on
the bench, partially open. Less than a minute after noticing the knife, Joann
stood up to see if the bus was coming. As she made a comment about the bus,
2 Appellant’s request to augment, or for judicial notice of, transcript
portions from case No. D079691, is granted.
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the man abruptly came up to her and hit her two times in the chest. Feeling
unable to breathe, Joann stumbled out into traffic for help.
About a minute later, Joann realized she had been stabbed. While
waiting for the police to arrive, she watched the man walk away at a leisurely
pace.
Based on Joann’s description of the man, the police arrested Cervantes a
short distance away. Joann identified Cervantes as the man who had stabbed
her. DNA evidence discovered on a knife, found in the bushes behind the bus
stop, corresponded with DNA samples taken from both Joann and Cervantes.
DNA uncovered on a matching sheath, found along Cervantes’ predicted route
linked the sheath to him.
Dr. Michelle Hamel treated Joann for her injuries. She observed two
stab wounds, which had penetrated the chest cavity, causing a partially
collapsed lung. Using local anesthetic, a tube was inserted to release the
blood, though no surgery was required for the lung itself. Apart from having
her stitches removed a week later, no follow-up treatment was necessary.
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks the
court to independently review the record for error. To assist the court in its
review, and in compliance with Anders v. California (1967) 386 U.S. 738(Anders), counsel has identified two possible issues that were considered in
evaluating the potential merits of this appeal.
1. Did the court abuse its discretion by failing to further reduce
Cervantes’s sentence?
2. Whether the trial court erred in failing to adjust the
section 1202.4, subdivision (b) fine downward in light of the reduction in the
prison term.
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Cervantes’s submission is somewhat unclear. He quotes several statutes
and seems to argue he should have the benefit of statutory changes which
were not before the trial court. He claims all of the sentence enhancements in
this case should have been dismissed under other legislative enactments.
Cervantes’s brief does not raise any arguable issues for reversal on appeal in
light of the record.
We have reviewed the record for error as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal. Competent
counsel has represented Cervantes on this appeal.
DISPOSITION
The judgment as modified by resentencing is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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