People v. Aponte CA4/1 ( 2014 )

Filed 5/8/14 P. v. Aponte CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064648
Plaintiff and Respondent,
v. (Super. Ct. No. SCD244118)
KIM APONTE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Matias R.
Contreras, Judge. (Retired Judge of the Imperial County Super. Ct., assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Respondent.
A jury convicted Kim Aponte of one count of using a tear gas weapon, not in self-
defense (Pen. Code, § 22810, subd. (g)(1)). Prior to trial, the court suspended criminal
proceedings to evaluate Aponte's competence to stand trial. She was ultimately found
competent and criminal proceedings were reinstated.
The court denied probation and sentenced Aponte to two years local prison
custody. Probation was revoked on two other cases and Aponte was sentenced to a two-
year concurrent term. Various fines and fees were imposed as required by statute.
Aponte filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not
arguable issues. We offered Aponte the opportunity to file her own brief on appeal, but
she has not responded.
STATEMENT OF FACTS
The victim in this case is Aponte's husband. They have been married over 24
years and have five children. The offense occurred on October 25, 2012, while Aponte
and her husband were attending various medical appointments. Among other things the
argument focused on Aponte's stated need to make more medical appointments for a
described condition. Her husband wanted proof of the new condition before making
more appointments. As the argument escalated, Aponte got out of the driver's seat and
into the back seat. When she got into the back seat, she rummaged through her purse and
took out a key chain with a canister of pepper spray on it. Aponte then said, "I got
your . . . proof right here." Pepper spray was then splashed off the dashboard and door
handle into her husband's face. Aponte then helped her husband get out of the car and
walked him to the curb. She then told him to find his own way home and drove off. Mr.
Aponte was able to call one of their sons and get a ride home.
2
Aponte was later arrested on an outstanding warrant and thereafter charged with
the current offense.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating she is
unable to identify any argument for reversal and asks this court to review the record for
error as mandated by Wende, supra, 25 Cal. 3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies a possible, but not arguable issue:
Whether the trial court erred in instructing the jury on principles of general
criminal intent, rather than instructing on principles of specific intent?
We have reviewed the entire record in accordance with Wende, supra,
25 Cal. 3d 436 and Anders, supra, 386 U.S. 738 and have not found any reasonably
arguable appellate issues. Competent counsel has represented Aponte on appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
3