Opinion
E070322
10-24-2018
THE PEOPLE, Plaintiff and Respondent, v. WESLEY BARTHUM ARNOT, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR000286) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted defendant and appellant, Wesley Barthum Arnot, of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), a lesser included offense of the felony charge of resisting an executive officer (count 1; Pen. Code, § 69). The court placed defendant on informal, summary probation for three years with a term that defendant be banned from possessing a gun "during the course of his probation[.]" On February 16, 2018, the court denied defendant's request that the court remove the conditions of his probation requiring that he submit to searches and be prohibited from possessing a firearm.
We took judicial notice of the record in defendant's prior appeal, case No. E068563. We derive a substantial portion of our factual and procedural recitation from our opinion in that case. --------
After defendant filed a notice of appeal, 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 facts, a statement of the case, and one potentially arguable issue: whether the court abused its discretion by prohibiting defendant from possessing a firearm as a term of his probation. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
An officer was dispatched to defendant's residence regarding a report of domestic violence. The officer could hear the two people "yelling and arguing." The female told the officer she wanted to open the door, but defendant closed and locked it. Defendant said he wanted the female removed from the home. The female told Deputy Severson defendant had a license to carry a concealed weapon. She said she was afraid of defendant.
The officer asked defendant to come out and speak with him; defendant refused; defendant also refused to open the door and allow the officer to come inside. The female said she was the victim; defendant had thrown a coffee mug at her head. The officer could hear the female and defendant continue to argue; she "was audibly upset and crying through most of our conversations and encounter with her."
Defendant came into the hallway, saw the female opening the door for the officer, told the officer to "[g]et the fuck off my property," pushed past the female, and charged toward the officer at a sprint. The officer told defendant to stop. Defendant raised his right hand toward him and brought it down toward the officer's head. The officer ducked and moved to sweep defendant's arm away from his head; defendant swiped the officer's head nonetheless. The force of defendant's movement caused his body to contact the left side of the officer's body; the officer tried to get ahold of defendant's left arm; a backup officer arrived and helped control defendant by taking him to the ground.
Once on the ground, defendant thrashed and twisted. The officers told defendant to stop resisting; however, defendant continued to struggle. After one of the officer's threatened to use a Taser on defendant, he relented and the officers were able to handcuff him. A black metal flashlight was recovered either from under defendant's body or from his right hand. The female told the officer she saw defendant lunge outside the house.
One of the responding officers testified he saw defendant lunge quickly at the first officer through the open door with his hands in the air; defendant had a flashlight in his right hand; defendant shoved the first officer in the chest. The other responding officer also saw defendant lunge quickly out of the doorway toward the first officer and shove him in the chest. One of the backup officers testified defendant apologized for shoving the first officer.
After sentencing defendant to three years of summary, informal probation, the court noted: "This conviction also will require a 10-year gun prohibition. And I think for you, that is probably the biggest punishment, being a person that has had a concealed weapon for a period of time, that that's a big punishment, 10 years. But that's the law and I will impose that." Defendant accepted probation on the terms posed by the court after consulting with defense counsel.
Defense counsel later filed a motion for removal of the firearm prohibition and the search terms of defendant's probation. The People filed opposition. The court denied the motion, but clarified that defendant was prohibited from possessing a firearm only "during the course of his probation[.]"
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. 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 arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.