Opinion
D077240
09-16-2020
THE PEOPLE, Plaintiff and Respondent, v. BALZER LOUIS BERGMAN III, Defendant and Appellant.
Balzer Louis Bergman III, in pro. per.; and Kenneth H. Nordin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1702024) APPEAL from an order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Balzer Louis Bergman III, in pro. per.; and Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 2017, Balzer Louis Bergman III was convicted by a jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 2). As to each count, the jury found Bergman personally inflicted great bodily injury on the victim (§§ 12022.7, subd. (a) and 1192.7, subd. (c)(8)). Bergman admitted a prison prior (§ 667.5, subd. (b)); a serious felony prior (§ 667, subd. (a)); and a strike prior (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise specified. --------
Bergman was sentenced to a 12-year term in prison.
Bergman appealed and the court affirmed the conviction in an unpublished opinion filed November 8, 2018. (People v. Bergman (Nov. 8, 2018, D074719) [nonpub. opn.].) In our opinion, we remanded the case to the trial court with directions to strike either count 1 or 2; strike the enhancement to the count which the court strikes; strike the prison prior; and exercise its discretion to grant or deny a motion to strike the serious felony prior.
On remand, the court struck count 2 and the enhancement and struck the prison prior. The court denied the motion to strike the serious felony prior in the furtherance of justice. (§ 1385.)
Bergman again appeals.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Bergman the opportunity to file his own brief on appeal. Bergman has responded with a supplemental brief, which we will discuss below.
STATEMENT OF FACTS
The facts of the offense are fully set forth in our prior opinion. We decline to repeat them here. (People v. Bergman, supra, D074719.)
DISCUSSION
As we have noted, counsel has filed a Wende brief and asks the court to review the record for error as required by Wende. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issue that was considered in evaluating the potential merits of this appeal: Did the court abuse its discretion in denying Bergman's request to strike the serious felony prior in the furtherance of justice.
In his supplemental brief, Bergman contends he should have been represented by his original trial counsel and the judge who considered the motions should have been the one that presided over the original trial. He claims he is not guilty of the offense, he has family to consider, and he has performed well while in prison. Bergman's brief is based on matters outside the record on this appeal. Our task is to search the record for arguable issues that would potentially justify reversal on appeal. Bergman's submission does not lead us to any arguable issues from the record on appeal.
We have reviewed the entire record as mandated by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Bergman on this appeal.
DISPOSITION
The order denying the motion to strike the serious felony prior conviction (§ 667, subd. (a)(1)), is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. IRION, J.