Filed 6/18/14 P. v. Deaver 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

         Plaintiff and Respondent,                                             F065517 & F065615

                   v.                                              (Fresno Super. Ct. Nos. F10500514 &
                                                                               F12902412)
JASON DAVID DEAVER,
                                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEALS from judgments of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-
         In case No. F10500514, a jury convicted appellant Jason David Deaver of assault
with a firearm (count 2/Pen. Code, § 245, subd. (a)(2)),1 shooting at an inhabited

         *   Before Levy, Acting P.J., Gomes, J. and Peña, J.
dwelling (count 3/§ 246), and found true an allegation in count 2 that appellant personally
used a firearm (§ 12022.5, subd. (a)). In a separate proceeding, Deaver admitted four
prior prison term enhancements (§ 667.5, subd. (b)).
       In case No. F12902412, Deaver pled no contest to battery on a custodial officer
(§ 243.1). Following independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436, we affirm.
                       FACTUAL AND PROCEDURAL HISTORY
       In April 2010, Deaver began a relationship with Talia Quinlan. Eventually he
began living with her in her father’s home in Caruthers.
       On September 22, 2010, at approximately 7:00 p.m., Quinlan ended her
relationship with Deaver. At approximately 10:38 p.m., Quinlan went to bed. Before
midnight, Deaver was high on cocaine when he left a friend’s house and went to
Quinlan’s house intending to sleep on the couch. However, when he arrived there he saw
a car parked in the alley behind the house and he became emotionally distraught because
he thought Quinlan had left him for another man. Deaver went to his friend’s house, got
a sawed-off shotgun, and returned to Quinlan’s house around midnight. He then fired
two shots through a window into Quinlan’s bedroom. The shotgun pellets struck a wall
mirror, a dresser, and the foot of Quinlan’s bed, and they scattered glass all over the room
and on Quinlan. Quinlan, however, was not hit by any of the pellets. Deaver fled but
was arrested on September 26, 2010, on a parole violation.
       On November 4, 2010, in case No. F10500514, the district attorney filed an
information charging Deaver with attempted premeditated murder (count 1/§§ 664 &
187), assault with a firearm (count 2), and shooting into an inhabited dwelling (count 3).
The information also alleged a personal discharge of a firearm enhancement in count 1


       1   All further statutory references are to the Penal Code, unless otherwise indicated.



                                               2.
(§ 12022.53, subd. (c)), a personal use of a firearm enhancement in count 2 (§ 12022.5,
subd. (a)), and four prior prison term enhancements (§ 667.5, subd. (b)).
       On January 18, 2012, the court granted the defense’s request to suspend criminal
proceedings after an issue arose regarding Deaver’s competency to stand trial.
       On April 4, 2012, Deaver was involved in an altercation with correctional officers
at the Fresno County jail and was placed in a restraint chair in his cell. When
Correctional Officer Paul Haro went to investigate noises Deaver was making, Deaver
spit in his face twice (case No. F12902412).
       On April 6, 2012, in case No. F12902412, the district attorney filed an information
charging Deaver with battery on a custodial officer (§ 243.1), aggravated battery
(§ 243.9), and five prior prison term enhancements.
       On May 12, 2012, the court found Deaver competent to stand trial and reinstated
criminal proceedings.
       On June 18, 2012, in case No. F10500514, the district attorney filed an amended
information that eliminated the allegations that the attempted murder was willful,
deliberate, and premeditated. Additionally, a jury trial in that case began on that date.
       On June 27, 2012, in case No. F10500514, Deaver admitted the four prior prison
term enhancements charged in that case.
       On June 28, 2012, a jury convicted Deaver of assault with a firearm and shooting
into an inhabited dwelling and found true the firearm use enhancement in the assault
count. The jury, however, was not able to reach a verdict on the attempted murder
charge.
       On June 29, 2012, in case No. F12902412, Deaver pled no contest to battery on a
custodial officer in exchange for the dismissal of the remaining count and enhancements
in that case, the dismissal of the attempted murder charge in case No. F10500514, the
dismissal of case Nos. F12902412 and M10917967, and a stipulated concurrent term on
his battery on a correctional officer conviction.

                                             3.
       On August 1, 2012, the court sentenced Deaver in both cases to an aggregate 18-
year term: the upper term of four years on his assault with a firearm conviction, a 10-year
firearm use enhancement in that count, a stayed term on his shooting into an inhabited
dwelling conviction, a concurrent three-year term on his battery on a custodial officer
conviction, and four one-year prior prison term enhancements. In case No. F10500514,
the court awarded Deaver 776 days of presentence custody credit consisting of 676 days
of presentence actual custody credit and 101 days of presentence custody credit pursuant
to section 2933.1. In case No. F12902412, the court awarded Deaver 240 days of
presentence custody credit consisting of 120 days of presentence actual custody credit
and 120 days of presentence conduct credit pursuant to section 4019.
       Deaver’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) Deaver has not responded to this
court’s invitation to submit additional briefing.
       Following an independent review of the record, we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgments are affirmed.




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