THE PEOPLE v. LARRY ETMON CLAY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Larry Etmon Clay appeals from the judgment entered following his plea of no contest to assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)),¹ during the commission of which he inflicted great bodily injury (§ 12022.7).   The trial court sentenced Clay to five years in state prison.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.²

In October of 2009, Michelle Williams, her mother, her brother and her sister, Octavia,³ lived in an apartment on the 3400 block of Andy Street in the City of Long Beach.   At that time Octavia was dating appellant, Clay.

At approximately 10:00 p.m. on October 23, 2009, Michelle, who had seen Clay at the apartment earlier that evening, assumed that he had left.   Based on that assumption, Michelle invited Jerry Mitchell, Octavia's former boyfriend, to come over.   Michelle owed Mitchell $50 and she wished to pay him back.   Mitchell arrived at the apartment at approximately 10:45 p.m.

Octavia, who normally went to work between 10:45 p.m. and 11:00 p.m., was downstairs getting ready to leave.   Michelle was upstairs.   As Michelle came down the stairs to open the door for Mitchell, she noticed that Clay was still at the apartment.   He was asleep on the floor.

After Michelle let Mitchell in, he approached Octavia and said, “ ‘Baby, let me talk to you for a minute.   Let me talk to you for a minute.’  “ He and Octavia then had a discussion during which Octavia asked Mitchell to sign some documents.   Clay, who was no longer sleeping, told Octavia to “ ‘just give him the money.’  “ He then started walking back and forth in the living room and eventually ended up in Michelle's mother's room.

Octavia and Mitchell, who was “functional” although he appeared to have been drinking, continued to discuss “the money.”   As they talked, Michelle was facing Mitchell and Mitchell was facing Michelle's mother's bedroom.   Mitchell began to “flinch up.”   Michelle turned around and saw Clay. He, too, was “flinch[ing] up.”   Michelle believed that the two men were going to fight and she and her sister told them that there would be no fighting in the house.   Michelle's mother then came out of her room and asked Clay to leave.

As Clay walked outside, he taunted Mitchell, saying, “ ‘Come on, Blood.   Come on․’  “ After Clay was outside, Michelle's mother shut the door and locked it.   Clay, however, attempted to come back inside.

Although Michelle and Octavia told Mitchell that he should stay inside the house for awhile, he, accompanied by Octavia, decided to go out.   Michelle remained inside the house with her mother.   Approximately three minutes later, she “heard this commotion going on outside.”   She got up and opened the door to see Mitchell, his body face down and motionless on the concrete, and Clay kicking him in the upper body.   It appeared to Michelle that Mitchell was unconscious.

Members of a group which had gathered around the two men told Clay to “ ‘stop’ “ and that that was “ ‘enough.’  “ After he kicked Mitchell four or five more times, Clay stopped and ran down the street.   Michelle, assisted by her brother, rolled Mitchell onto his back.   He was still unconscious, was bleeding around his nose and mouth and had a cut on his elbow.   Michelle ran into the house, retrieved her cell phone and called 911.

2. Procedural history.

Following a preliminary hearing, on November 23, 2009 an information was filed alleging that, on or about October 23, 2009, “the crime of assault by means likely to produce great bodily injury, in violation of ․ section 245 [, subdivision] (a)(1), a Felony, was committed by Larry Etmon Clay, who did willfully and unlawfully commit an assault on Jerry Mitchell by means of force likely to produce great bodily injury.”   It was further alleged that “in the commission of the above offense,” Clay “personally inflicted great bodily injury upon Jerry Mitchell, not an accomplice to the above offense, within the meaning of ․ [s]ection 12022.7[, subdivision] (a) and also causing the above offense to become a serious felony within the meaning of ․ [s]ection 1192.7 [, subdivision] (c)(8).”

At proceedings held on May 7, 2010, the trial court indicated that the parties had reached an “agreed-upon disposition.”   The prosecutor stated that he and Clay had agreed that Clay would “plead to the [section] 245[, subdivision] (a)(1) and the [great bodily injury] allegation and that he would be sent on a [section] 1203.03[ ⁴ ] diagnostic with a lid of five years state prison if he [were] to be sentenced.”   The prosecutor then noted that Clay was also in violation of probation previously granted in another matter and that the sentence for the probation violation “would be concurrent.”   The prosecutor continued:  “So total lid of five years [in state prison].   We will advise the defendant, his lawyer and the court up front that we will be asking for the full five years.”   In addition, the People would be requesting that restitution be paid to the victim for “[w]hat he paid out of pocket[.]”  As the People did not yet know how much that would be, a future hearing would have to be held.   However, as of the May 7th hearing, documents indicated that the victim had incurred $32,697 in medical bills.

After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense, and his privilege against self-incrimination, Clay pleaded no contest to “count 1, a violation of ․ section 245[, subdivision] (a)(1), the crime of assault by means likely to produce great bodily injury upon the person of Jerry Mitchell[.]”  Clay then admitted the charge “that in the commission of count 1 that [he] inflicted great bodily injury upon the person of Jerry Mitchell, in violation of ․ section 12022.7[, subdivision] (a)[.]”

The trial court ordered that Clay's diagnostic study be completed no later than August 16, 2010.   Clay then waived his right to be sentenced that day, on May 7, 2010, or “within a short time” of that day and agreed that he could be sentenced on August 16 or up to 10 days after that date.

At proceedings held on August 17, 2010, the trial court indicated that it had read and considered Clay's diagnostic report and found “it to be insufficient by any stretch of the imagination.”   The trial court stated that “[t]heir analysis of [Clay's] prior criminal history [was] mind boggling because they say his criminal history is not lengthy.”   The court indicated that Clay had had nine “prior contacts” and, contrary to the report, had been on formal probation.   The trial court noted that Clay had had six warrants for traffic violations, which the court concluded showed “a refusal to obey the law.”   When he was on probation, Clay violated its terms twice and was sent to camp.   The court continued:  “He has over a two-page rap sheet.   I find that to be lengthy․  [¶] ․ You are talking about starting at age 14 and it goes ahead [from there].”   Among Clay's “contacts” was an attempted robbery.   The court concluded that “[a]ttempted robbery is dangerous.”   In addition, Clay had been found guilty of “burglary, which the law says is a dangerous crime because of the opportunities involved.”   He had also twice “challenge[d another] to fight in public, which” shows that he has a propensity for violence.

After the court concluded its remarks, the prosecutor indicated she wished to add to the discussion.   She stated that Clay's first “contact” at the age of 13 was a sustained petition for attempted robbery.   She noted that “[t]he battery in that case was dismissed” but indicated that “[t]here was another 2005 juvenile adjudication at [age] 15.   He got a petty theft.   Part of that disposition was dismissing ․ robbery and ․ extortion charge[s].  [¶] And ․ [at the time that crime was committed,] he was on probation for ․ [a section] 487[, subdivision] (c)[,] grand theft personal property.  [¶] The counts [which had been] dismissed in the settlement of [that] case [were] one count of 211[, robbery,] and three counts of attempted robbery.”   Finally, the prosecutor noted that in April of 2009, Clay violated his probation by possessing a firearm.   However, “[e]ven with the suspended time, he got time served [for] that[:] ․ 102 days [of] county jail credit.”   With regard to the present incident, the prosecutor emphasized that Clay broke the victim's nose and that the victim “was beaten unconscious and as he was laying unconscious he was kicked repeatedly.”

In Clay's defense, his counsel brought to the court's attention the fact that Clay's crime had been referred to as “situational in nature.”   There was apparently a restraining order in effect against Mitchell:  he was not to go to Octavia's residence.   Counsel continued:  “[In addition,] [t]he victim had been drinking․  [¶] It is, apparent, although this individual, this victim went there to be paid back some money or square[ ] away some business with his ex [,] he went too far.  [¶] He went inside the house.   He made statements that were something to the [e]ffect of, ‘Baby, can we talk?   Baby, can we talk?’ while [Clay] was there.  [¶] [Clay] cooperated up to that point․”  Counsel for Clay then asserted that Mitchell “happens to be a much, much bigger man than [Clay].” Finally, counsel indicated that Clay was living at Octavia's house and that “[t]his [was] something he did not plan.”

The trial court sentenced Clay to a term of two years in prison for his conviction of assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) and a consecutive term of three years in prison for his admission that he inflicted great bodily injury pursuant to section 12022.7.   In total, Clay was sentenced to the agreed-upon term of five years in state prison.

He was awarded presentence custody credit for 229 days actually served and 34 days of good time/work time, for a total of 263 days.   The trial court ordered Clay to pay a $1,000 restitution fine (§ 1202.4, subd. (b)), a stayed $1,000 parole revocation restitution fine (§ 1202.45), a $30 court security fee (§ 1465.8, subd. (a)(1)), a $30 conviction assessment (Gov.Code, § 70373), and restitution to the victim in an amount yet to be determined (§ 1202.4, subd. (f)).

Clay filed a timely notice of appeal on September 30, 2010.

This court appointed counsel to represent Clay on appeal on December 3, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed February 17, 2011, the clerk of this court advised Clay to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278–284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The facts have been taken from the transcript of the preliminary hearing..  FN2. The facts have been taken from the transcript of the preliminary hearing.

FN3. We refer to some individuals by their first names not out of any disrespect, but for the sake of clarity..  FN3. We refer to some individuals by their first names not out of any disrespect, but for the sake of clarity.

FN4. Section 1203.03 provides in relevant part:  “(a) In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90–day period.”.  FN4. Section 1203.03 provides in relevant part:  “(a) In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90–day period.”

KITCHING, J. ALDRICH, J.