Filed 8/26/15 P. v. Gardner 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063381

v.                                                                       (Super.Ct.No. FSB1302889)

CORNELL GARDNER,                                                         OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Annemarie G.

Pace, Judge. Affirmed.

         Christopher Love, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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                    FACTUAL AND PROCEDURAL HISTORY

      A.     PROCEDURAL HISTORY

      On July 10, 2013, a felony complaint charged defendant and appellant Cornell

Gardner with murder under Penal Code section 187, subdivision (a), and second degree

robbery under Penal Code section 211. Defendant pled not guilty to both counts.

      On September 10, 2013, defense counsel expressed a doubt regarding defendant’s

competence. Therefore, the trial court appointed Dr. Guerra to evaluate defendant

pursuant to Penal Code sections 1368 and 1369. Dr. Guerra opined that defendant was

not competent. On October 22, 2013, the prosecutor requested that a second doctor be

appointed. The court appointed Dr. Clark. Dr. Clark opined that defendant was

competent. Defense counsel then requested that a third doctor be appointed. The court

appointed Dr. Kojian; he opined that defendant was competent.

      Thereafter, the trial court set a date for a jury trial to determine defendant’s

competence. Defendant waived his right to a jury trial and agreed to a court trial. On

August 25, 2014, the court, having considered the three doctors’ opinions, found that

defendant was competent.

      On January 23, 2015, the prosecutor amended the complaint and added several

new allegations. The amended complaint alleged one count of voluntary manslaughter

under Penal Code section 192, subdivision (a); and four separate counts of assault by

force likely to produce great bodily injury under Penal Code section 245, subdivision

(a)(4). Defendant then pled guilty to the added count of voluntary manslaughter and four

counts of assault by force likely to produce great bodily injury. Defendant agreed to


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serve 15 years in state prison. At the prosecutor’s request, the trial court dismissed the

charges of murder and second degree robbery.

       On February 24, 2015, the trial court sentenced defendant to the negotiated term of

15 years in state prison. The sentenced consisted of the upper term of 11 years for

voluntary manslaughter, and one-third the midterm for each of the four assaults (one year

each), to be served consecutively. On April 17 2015, defendant filed his notice of appeal.

       B.      FACTUAL HISTORY 1

       On July 7, 2013, defendant was a transient and living on the streets of San

Bernardino. A number of other transients lived in the area, including the victim.

       At approximately 2:00 a.m. on July 7, 2013, a security guard was working outside

the El Super Market. The security guard was patrolling the area outside of the store when

he heard what sounded like a fight. He saw a person in a nearby field, later identified as

the victim. The victim was lying face down on the ground and another person, later

identified as defendant, was kicking the victim in the face. Defendant then fled. The

victim told the security guard that defendant had taken an unknown amount of cash from

the victim.

       The victim sustained traumatic injuries to his face and head. When the police

arrived, the victim was breathing but unresponsive to questions; he was taken to a

hospital. The following day, the victim was declared legally brain dead.




       1   The facts are taken from the police reports pursuant to the parties’ stipulation


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                                        DISCUSSION

       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

to undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we

have independently reviewed the record for potential error and find no error.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                        MILLER
                                                                                             J.


We concur:


KING
                       Acting P. J.


CODRINGTON
                                   J.




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