Filed 9/13/13 P. v. Harris CA4.1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D062631

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. JCF25248)

MICHAEL HARRIS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Imperial County, William D.

Lehman, Judge. Affirmed.

         Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       Michael Harris pled guilty to one count of assault by a state prisoner (Pen. Code,

§ 4501)1 and admitted one prior conviction for a serious or violent felony. The trial court

sentenced Harris to the middle term of four years, doubled to eight years for the prior

conviction. We affirm the judgment.

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Harris was charged by indictment with one count of assault by a life prisoner

(§ 4500), one count of assault by a state prisoner (§ 4501), and one count of battery on a

nonconfined person by a prisoner (§ 4501.5). As to each count, the indictment also

alleged that Harris committed the offense while confined in a state prison (§ 1170.1,

subd. (c)) and that Harris had suffered a total of five prior serious or violent felony

convictions (§ 1170.12, subds. (a)-(d) and § 667, subds. (b)-(i)).

       According to the charging document, the charges against Harris arose out of a

November 21, 2009 incident in which Harris, while incarcerated in state prison, attacked

a correctional officer who was attempting to move Harris to a different unit. Harris

began arguing with the officer, and the officer sprayed Harris with pepper spray and

ordered him to get down on the floor. Harris began striking the officer in the face and




1      All statutory references are to the Penal Code unless otherwise specified.
                                              2
head with his fist, causing the officer to fall to the floor. Harris kicked the officer in the

face and continued beating the officer until he was subdued by other officers.

       On March 22, 2011, the trial court granted Harris's request that he be permitted to

represent himself with the assistance of advisory counsel. Approximately a month later,

on April 27, Harris filed a motion to suppress evidence. 2 After full briefing and a

hearing, the trial court denied Harris's motion.

       On October 14, 2011, Harris filed a motion to set aside the indictment, pursuant to

section 995. After full briefing and a hearing, the trial court denied the motion to set

aside the indictment. The trial court also denied Harris's motion to compel the prosecutor

to elect the charge on which the prosecution intended to proceed.

       As part of a negotiated plea agreement, on July 23, 2012, Harris withdrew his not

guilty pleas with respect to the count alleging assault by a state prisoner (§ 4501) and

admitted having suffered one prior serious or violent felony conviction. In return, the

prosecutor dismissed the remaining counts and prior conviction allegations. The trial

court sentenced Harris to the middle term of four years, doubled to eight years as a result

of the strike conviction, and set the term to run consecutively to the sentence that Harris

was already serving.

       Harris filed a notice of appeal, and requested a certificate of probable cause. The

court denied Harris's request for a certificate of probable cause.




2     In his motion to suppress, Harris does not identify the specific evidence that he
was seeking to suppress.
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       Harris's appointed counsel filed a brief pursuant to People v. Wende (1979) 25

Cal.3d 436 (Wende). We invited Harris to file a brief on his own behalf, but he has not

responded.

                                            III.

                                      DISCUSSION

       Harris's counsel presents no argument for reversal, but asks this court to review the

record for error, as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders v.

California (1967) 386 U.S. 738 (Anders), counsel lists the following as possible, but not

arguable, issues:

          (1) "Did appellant knowingly and voluntarily waive his right to
          counsel on March 22, 2011?"

          (2) "Did the trial court properly advise appellant of the potential
          adverse consequences of this request to represent himself in this
          matter?"

          (3) "Did the trial court properly deny appellant's motion to suppress
          evidence?"

          (4) "Does the imposition upon appellant of a $240.00 restitution fine
          constitute an improper ex post facto action by the trial court in light
          of the fact that appellant's crime was committed in 2010, well before
          the revisions to Penal Code section 1202.4?"

       A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders,

supra, 386 U.S. 738, including the possible issues listed pursuant to Anders, has disclosed

no reasonably arguable appellate issues. Harris has been competently represented by

counsel in this appeal.




                                             4
                                    IV.

                                DISPOSITION

    The judgment is affirmed.



                                              AARON, J.

WE CONCUR:



          McCONNELL, P. J.



              McDONALD, J.




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