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                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified
                               for publication or ordered published for purposes of rule 8.1115.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,

                                                             1
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



                                                 2
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.



                                              3
                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                 McKINSTER
                                                             J.
We concur:



RAMIREZ
                      P. J.



KING
                         J.




                                        4
