People v. Turner CA5 ( 2021 )

Filed 6/23/21 P. v. Turner CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081519
Plaintiff and Respondent,
(Kern Super. Ct. No. DF014539A)
v.
TYRONE TENDASHAGI TURNER, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf,
Judge.
Dorothy A. Streutker, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the Attorney General, Sacramento, California for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Appellant and defendant Tyrone Tendashagi Turner, a state prison inmate, pleaded
no contest to felony aggravated battery and was sentenced to two years in prison. On
* Before Hill, P.J., Levy, J. and Detjen, J.
appeal, his appellate counsel has filed a brief that summarizes the facts with citations to
the record, raises no issues, and asks this court to independently review the record.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
FACTS1
On July 30, 2018, Correctional Officer Bess was on duty at Kern Valley State
Prison; he was picking up trays after breakfast. He reached cell No. 102, where
defendant was housed by himself. Defendant had just arrived in the facility one or two
days earlier. Bess opened the cell’s food port, and defendant was supposed to hand out
his food tray. Instead, defendant threw the contents of a milk carton at Bess. The
contents consisted of feces and landed on Officer Bess’s skin and uniform. Defendant
yelled, “[T]his is your fault, you should have never listened to that bitch.” Bess did not
know what defendant meant and had no prior history with him.
PROCEDURAL BACKGROUND
On November 18, 2019, an information was filed in the Superior Court of Kern
County charging defendant with a felony violation of Penal Code section 4501.1,2
aggravated battery on a peace officer or state prison employee by gassing, with the
further allegation that he had a prior strike conviction for murder in 1996.
On March 17, 2020, defendant entered into a negotiated disposition and pleaded
no contest to the charged offense; he also admitted the prior strike conviction, for an
indicated second strike term of two years consecutive to the prison term he was already
serving.
On June 29, 2020, the court sentenced defendant to one year (one-third the
midterm) doubled to two years as the second strike term, to be served consecutively to
1 The facts are from the preliminary hearing transcript.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
the sentences he was already serving: a 10-year determinate term plus life without the
possibility of parole.
Defense counsel objected to the imposition of any fines or fees. Defendant
addressed the court and stated he did not have the means to pay any restitution; he was
physically able to work, but there was no law that required the prison to assign a job to
him.
The court stated it was aware of the holding in People v. Dueñas (2019) 30
Cal.App.5th 1157, and found defendant was not similarly situated as the probationer in
that case, who was disabled, unable to work, and sent to jail because she could not pay
the fines. The court noted defendant appeared able-bodied, and he was already serving a
sentence for life in prison without possibility of parole. The court stated it would impose
the minimum restitution fine.
The court imposed the statutory minimum $300 restitution fine (§ 1202.4,
subd. (b)), suspended the same amount for the parole revocation fine (§ 1202.45); and
also imposed a $40 security fee (§ 1465.8) and a $30 criminal conviction assessment
(Gov. Code, § 70373).
On August 3, 2020, defendant filed a notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on December 10, 2020, we
invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
3.