Filed 10/31/13 P. v. Rodriguez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058227

v.                                                                       (Super.Ct.No. BAF1200188)

RICHARD RODRIGUEZ, JR.,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,

Judge. Affirmed.

         Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant Richard Rodriguez, Jr., appeals following his conviction for

misdemeanor assault, as a lesser included offense. We will affirm the conviction.




                                                             1
                               PROCEDURAL HISTORY

       Defendant was charged by a second amended information with felony assault by

means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).)1

The information also alleged four strike priors. (Pen. Code, §§ 667, subds. (c), (e)(2)(A),

1170.12, subd. (c)(2)(A).) A jury found him guilty of simple assault, a misdemeanor

(Pen. Code, § 240), as a lesser included offense. The court sentenced defendant to a term

of 180 days in local custody, with credit for 180 days served.

       Defendant filed a timely notice of appeal.

                                         FACTS

       On October 20, 2011, while incarcerated in a Riverside County jail facility in

Banning, defendant was involved in an altercation in which he and four other inmates

punched another inmate, Arguelles. Riverside County Deputy Sheriff Evan Bechtold

reviewed the surveillance tape and observed that defendant was one of the inmates

assaulting Arguelles. A videotape of the incident was played for the jury. Photographs

of Arguellas taken by Deputy Bechtold after the incident (exhibits 5-8) showed cuts

on his forehead and around his eyes. Bechtold also took photographs of defendant

(exhibits 14 & 16), showing that his right hand was swollen while his left hand was not.

The photograph also showed that the knuckles of defendant’s right hand were reddened.



       1 The second amended information alleges the assault by means of force likely to
produce great bodily injury as a violation of Penal Code section 245, subdivision (a)(1).
However, that offense is set forth in subdivision (a)(4). Subdivision (a)(1) prohibits
assault with a deadly weapon or instrument.

                                             2
                                      DISCUSSION

       We appointed counsel to represent defendant on appeal. After examination

of the record, counsel filed an opening brief raising no issues and asking this court to

independently review the record. We offered defendant the opportunity to file any

supplemental brief he deemed necessary, but he did not do so.

       We have examined the entire record and have found no error. We are satisfied

that defendant’s attorney has fully complied with his responsibilities and that no arguable

issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende (1979) 25

Cal.3d 436, 441.) In reaching this conclusion, we examined the sufficiency of the

evidence to support the conviction, as mentioned by appointed counsel but not argued.

We are satisfied that substantial evidence supports the conviction.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                McKINSTER
                                                                                 Acting P. J.
We concur:


RICHLI
                           J.


MILLER
                           J.




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