Filed 4/25/13 P. v. Smith CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified
for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055533
v. (Super.Ct.No. SWF1100831)
MARK ALLEN SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Arjuana T. Saraydarian,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Affirmed.
Ann Bergen, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
On May 19, 2011, an information was filed charging defendant and appellant Mark
Allen Smith with one count of battery causing serious bodily injury (Pen. Code, § 243,
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subd. (d)) and an enhancement of inflicting great bodily injury (Pen. Code, §§ 667,
1192.7, subd. (c)(8)).
On September 12, 2011, proceedings in this case were suspended under Penal
Code section 1368. After the completion of psychological evaluations, on October 11,
2011, the proceedings were reinstated.
On November 7, 2011, trial by jury commenced. Two days later, the jury found
defendant guilty of battery causing serious bodily injury (count 1), but found that
defendant did not inflict great bodily injury.
On December 8, 2011, defendant was sentenced to the midterm of three years in
state prison on count 1; however, the execution of the sentence was suspended, and
formal probation was granted for 60 months. Defendant was committed to the custody of
the Riverside County Sheriff for 330 days, with credit for time served of 230 actual days,
plus 120 days conduct credit under Penal Code section 4019, for a total of 350 days. The
trial court also ordered defendant to pay various fines and fees.
On January 24, 2012, defendant filed his timely notice of appeal.
STATEMENT OF FACTS
On July 30, 2010, defendant, the victim, and the victim‟s brother were in a gym in
Temecula. According to the victim, defendant bumped into his back, grabbed his arm,
mumbled something, and then slapped the victim on both ears. Thereafter, defendant
head-butted the victim in the face with sufficient force that the victim‟s nose started to
bleed. The victim grabbed his nose and walked to the front desk to complain about
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defendant‟s actions. Defendant followed the victim to the desk and stated, “„Let‟s finish
it right now.‟” Because his nose would not stop bleeding, the victim went to the
emergency room. While waiting for a doctor to see him, the victim called the police. The
victim testified that he had never talked to defendant prior to this incident and did not
know him.
According to defendant, he and the victim were working out near each other in the
gym. Defendant testified that he was about to get smashed against a machine, so he put
his hands up and the victim bumped into him. The victim then approached defendant and
grabbed him with both arms. Defendant removed the victim‟s arms. The victim then
walked away from defendant and toward his brother, about 15 feet away. Defendant then
approached the victim to shake his hand, to be “nice [and] polite.” However, the victim
slapped defendant. Defendant‟s response to being slapped was to head-butt the victim.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the
case, a summary of the facts and potential arguable issues, and requesting this court
undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we
have conducted an independent review of the record and find no arguable issues.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
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