Opinion
NOT TO BE PUBLISHED
Superior Court of Ventura Douglas County No. 2006028295, W. Daily, Judge.
Arthur Tyrone Finnegan, in pro. per.; California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, for Appellant.
No appearance by Respondent.
PERREN, J.
Arthur Tyrone Finnegan appeals the judgment following his "slow plea" to assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1); Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602.) The court also found true the allegations that Finnegan had a prior strike conviction and had served three prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d).) The trial court struck the priors in the interests of justice pursuant to Penal Code section 1385, and sentenced him to the low term of two years state prison.
Finnegan was initially charged with two counts of assault with a deadly weapon or by means of force likely to produce great bodily injury, based on a single incident with two separate victims. A jury acquitted him of one count, and failed to reach a verdict on the other. After the court declared a mistrial as to that count and the prosecution indicated its intent to proceed, Finnegan waived jury and agreed to submit the matter on the basis of the transcripts from the prior trial and the police reports. In exchange, the prosecution filed an amended information that did not include the deadly weapon allegation.
At approximately 11:00 p.m. on July 26, 2006, gasoline truck driver Tracy Clifton was waiting for two other drivers at a gas station when Finnegan, who was visibly drunk, approached and asked for help starting his vehicle. Clifton accompanied Finnegan to his vehicle, which had broken down on a nearby street, and attempted to start it. After the other truck drivers arrived, one of them helped Clifton and Finnegan push the vehicle to the gas station. Clifton told the station attendant to call the police, and conveyed this information to Finnegan and the other truck drivers. Finnegan became angry, started cursing, and ran at Clifton, who pushed him away. Finnegan proceeded to hit one of the other truck drivers, who fought back. When Clifton separated the two men, Finnegan retrieved a crowbar from his vehicle and repeatedly swung it at Clifton. After several unsuccessful attempts at hitting Clifton with the crowbar, Finnegan threw it at him. As Finnegan went to retrieve a flashlight from his vehicle, the police arrived and arrested him. Shortly thereafter, Finnegan passed out in the patrol car.
We appointed counsel to represent Finnegan in this appeal. After reviewing the record, counsel filed an opening brief raising no issues and requesting this court to independently examine the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
On April 17, 2008, we advised Finnegan that he had 30 days in which to submit a written brief or letter stating any contentions or arguments he wished us to consider. Finnegan filed a timely response in which he contends (1) the court erroneously relied on impeached testimony; (2) he acted in self-defense; (3) he did not have the present ability to inflict injury on his victim due to his state of intoxication; and (4) that the court should have exercised its discretion to reduce the charge to a misdemeanor under Penal Code section 17, subdivision (b). We find no merit in any of these contentions. There is no indication that the court improperly relied on impeached testimony, and the evidence is sufficient to support the findings that Finnegan was not acting in self-defense when he assaulted his victim and had the present ability to inflict injury on him. Moreover, in light of the record it cannot be said the court abused its discretion in refusing to reduce the offense to a misdemeanor.
We have examined the entire record and are satisfied that appellate counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.