Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 08CM7213. Lynn C. Atkinson, Judge.
Kenneth J. Hutz, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Hill, Acting P.J., Kane, J. and Poochigian, J.
It was alleged in an information filed June 23, 2008, that appellant Edwardo Pelayo Aguirre committed the following offenses: willful infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a); count 1), false imprisonment by force or violence (§ 236; count 2), and making a criminal threat (§ 422; count 3). On October 9, 2008, a jury convicted appellant on counts 1 and 2 and acquitted him on count 3 and on a lesser included offense of the count 3 offense, viz., attempting to make a criminal threat (§§ 422, 664). On November 10, 2008, the court imposed the four-year upper term on count 1 and a concurrent two-year midterm on count 2.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing.
FACTS
Appellant is married to Esperanza Aguirre (Esperanza). Yesenia Rodriguez, a neighbor of appellant’s, testified to the following. Between 8:30 p.m. to 9:00 p.m. on February 12, 2008 (February 12), she was walking along the sidewalk near her house when she saw Esperanza sitting in a parked car in front of appellant’s house, and appellant, standing outside the car with the car door open, grasping Esperanza by the hair and trying to pull her from the car. Esperanza resisted but appellant eventually succeeded in dragging her out of the car by her hair. She fell to the ground, but then got up, and appellant, still holding her by the hair, “more or less guided” her into the side yard of his house, approximately 15 to 20 feet from the car, as she continued to yell and say “Leave me alone.” At some point thereafter, appellant let go of Esperanza, who then made her way back toward the car. She got in the car but appellant reached in through the open door, grabbed her by the hair and, with the other hand, struck her twice with a closed fist, the first time in the face and then on the top of her head. Shortly thereafter a police car drove by and Rodriguez yelled at the driver to stop, at which point appellant ran off.
For the sake of brevity and clarity, and not out of disrespect, we refer to Esperanza Aguirre by her first name.
Officer Gabe Padama testified to the following. He arrived on the scene and made contact with Rodriguez and Esperanza. Esperanza had bruises on her arm and a bump on the top of her head. She told the officer that she and appellant had argued and that appellant grabbed her by the hair, pulled her from the car, and took her to the side of the house, where he hit her.
Esperanza testified to the following. On the night of February 12 she and appellant argued, but at no time that evening did appellant touch her. She suffered the bump on her forehead when she hit herself in the head on the car door while getting out of the car. She suffered the bruises on her arms approximately one week prior to February 12 while playing with her children.
Appellant testified that he and Esperanza argued on the night of February 12, but he did not hit or restrain her.
DISCUSSION
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
The judgment is affirmed.