Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF023265. Thomas C. Hastings, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury found defendant and appellant Miguel Lopez, Jr., guilty of one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 2). Defendant admitted the allegations that he had three prior strike convictions (§§ 667, subds. (c) & (e)(2)(A) and 1170.12, subd. (c)(2)(A)). The trial court granted defendant’s Romero motion as to two of his prior strike convictions and then sentenced him to six years in state prison.
All further statutory references will be to the Penal Code unless otherwise noted.
Defendant was charged with willful infliction of corporal injury on a spouse in count 1. The jury could not reach a verdict on that count, so the trial court declared a mistrial as to count 1.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant filed a notice of appeal following the sentencing hearing. We affirm.
FACTUAL BACKGROUND
In June 2007, defendant and his girlfriend, Elizabeth Hayes (the victim), lived together with her daughter, A., her sister, Melissa Martinez, and her mother, Joann Hall. Defendant and the victim were still dating at the time of trial. On June 17, 2007, they got into an argument. The victim suffered from bipolar disorder and was not taking her medication at that time. When she did not take her medication, she had mood swings and tried to hurt herself. Hall and Martinez were in the living room when they heard defendant and the victim arguing in their bedroom. Hall went to the bedroom to see what was going on. She saw the victim lying on the bed and defendant straddling her. Defendant and the victim were yelling at each other, and the victim was holding onto him because she did not want him to leave. The victim would not let him go and testified at trial that she was dragged through the house. Defendant went outside to his truck, and the victim followed him. Martinez called 911. The tape recording of the 911 call was played for the jury. Martinez told the 911 operator that her sister and her sister’s boyfriend got into an argument, and that he was hitting her. Martinez reported that defendant said that if the victim came around him, he was “gonna knock her out again.”
Officer Andrew Mata responded to the call. At trial, he testified that when he arrived at the apartment, he first contacted Martinez, who was visibly upset. Martinez told him that the victim was being abused by her boyfriend, and that he had left the scene. Officer Mata went inside the apartment and observed the victim, who was crying and distraught. He said that she “looked shuffled.” He observed multiple injuries on her, including lacerations, a swollen lower lip, a cut inside her lip, “breaking on the skin,” and scratches on her arms and back. The victim showed him a bruise on the right portion of her neck. She told Officer Mata that defendant had inflicted the injuries on her. She said she and defendant started arguing, and he grabbed her arms and “pushed her to the ground.” Then defendant held her with his hand around her neck, straddled her, and began striking her face with an open hand. Officer Mata also spoke with Hall, who told him she had seen defendant straddling the victim and holding her neck, when she entered the bedroom. Hall said she had to pull defendant off the victim. Officer Mata talked to Martinez a second time, and she said she saw defendant with his hand around the victim’s neck, and that he was punching her in the face and pulling her hair. Officer Mata took pictures of the victim’s injuries. The pictures were admitted into evidence.
At trial, defendant’s ex-wife, Christie Lopez, also testified. She was married to defendant for about 18 years. She testified that they had arguments that became physical. On May 25, 2005, after they had separated, defendant came to her house and was angry. They got into an argument, and he started pushing her. She called the police and reported that defendant forcefully threw her on to a futon, grabbed her arms, and restrained her. At some point, Lopez had a restraining order against defendant. Although at trial Lopez could not recall specific statements that she had made to the police, she testified that she was truthful with the police on the occasions she reported defendant. The police reports indicated that defendant threatened to kill her and threatened to burn her house down. Defendant also told her he was going to get a new car so he would not be recognized by the police.
DISCUSSION
Dependant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and a few potential arguable issues, including: 1) whether defendant was found guilty of an offense for which he was not charged, given the mistaken wording on the verdict form that stated he was guilty of assault with a deadly weapon rather than by means of force likely to produce great bodily injury; 2) whether the trial court abused its discretion under Evidence Code section 352 in admitting evidence of defendant’s prior acts of domestic violence; 3) whether the prosecutor committed misconduct in referring to a response from a voir dire juror during closing arguments; and 4) whether defendant was denied effective assistance of counsel if trial counsel failed to adequately preserve the aforementioned claim of prosecutorial misconduct. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has done. He submitted a three-page, handwritten letter brief and attached a letter from his appellate counsel informing him that she was not able to find any issues to appeal, a letter he previously wrote to Appellate Defenders, and reports on the public defender investigator’s interviews with Martinez, Hall, and Jose Ruiz, who was a maintenance worker at the apartment complex where defendant and the victim lived. Overall, defendant claimed that he received ineffective assistance of counsel. He specifically claimed that: 1) his trial counsel should have used information contained in his letter written to Appellate Defenders to cross-examine the victim regarding her bipolar mental condition; 2) there were possible falsified police reports; 3) there was information that could have been used to counter the 911 tape played at trial “to clarify that [the victim] was prone to using some type of cutting tools when she ha[d] a mental breakdown”; 4) there was information that Child Protective Services had taken the victim’s baby; 5) his ex-wife was brought in to testify on charges that were dismissed; 6) defense counsel should have cross-examined his ex-wife to verify that she was never given any medical treatment because there was never any physical abuse; 7) defense counsel should have cross-examined the police officer to verify that the police never took any pictures of his ex-wife because there was no abuse; and 8) the reports of the public defender investigator’s interviews with Martinez and Hall should have “produced a mistrial for p[e]rjury of facts” as noted in his letter to the Appellate Defenders.
A defendant who claims ineffective assistance of counsel (IAC) must establish that his counsel’s performance was deficient under an objective standard of professional competency, and that there is a reasonable probability that but for counsel’s errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) Here, defendant has failed to establish that his counsel’s allegedly deficient performance resulted in prejudice. Thus, his claims of IAC fail. Although he contends that the reports of the public defender investigator’s interviews with Martinez and Hall should have “produced a mistrial for p[e]rjury of facts” as noted on his letter to the Appellate Defenders, such letter does not explain what information from those interviews would have caused a mistrial. An appellate court need not consider mere contentions of error unaccompanied by adequate argument. (People v. Earp (1999) 20 Cal.4th 826, 884; People v. Barnett (1998) 17 Cal.4th 1044, 1182.)
Defendant further claims his decision not to testify was based on trial counsel’s “misleading responses to [his] questions....” However, he has failed to point to any citations in the record to support this claim. Moreover, the record reflects he was properly advised that he had the right to take the stand, and he simply chose not to.
In addition, defendant claims it was obvious to him that the prosecutor did not prove the “so called 4 elements needed to find [him] guilty....” This claim is meritless, since the jury found him guilty of assault by means of force likely to produce great bodily injury, which only required the prosecution to prove two elements: 1) that a person was assaulted; and 2) that the assault was committed by means of force likely to produce great bodily injury.
Defendant also contends that “when the judge sent the jurors back to deliberate 3 times with the verdict being not guilty on count one... it was clear to [defendant] the jury was confused as to there [sic] instructions and[/]or didn’t follow the law as instructed.” Contrary to defendant’s claim, there was no verdict reached on count 1. Rather, the court declared a mistrial as to count 1, since the jury was unable to reach a unanimous verdict. As such, any claim on appeal with regard to count 1 is pointless.
Next, in a single sentence, defendant asserts: “I wasn’t given a fair trial due to some fabricated evidence and withholding exculpatory evidence as well as initiating and maintaining a malicious prosecution as per a statement given to by my probation officer... prior to my arrest when he said ‘they are trying to build a case on you.’” “‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793.) Defendant fails to make any argument or cite to any authorities in support of these claims. Thus, they are waived.
We have now concluded our independent review of the record and found one arguable issue. As appellate counsel has pointed out, the record shows that the verdict form mistakenly states defendant was found guilty of assault with a deadly weapon, rather than by means of force likely to produce great bodily injury. No objections were made at trial as to the verdict form. “A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court. It must be upheld when, if so construed, it expresses with reasonable certainty a finding supported by the evidence [citation].” (People v. Radil (1977) 76 Cal.App.3d 702, 710.) We initially note that defendant was charged with a violation of section 245, subdivision (a)(1), which provides punishment for any person who commits an assault with a deadly weapon or by means for force likely to produce great bodily injury. Thus, the verdict form contains the correct Penal Code section, but the wrong wording. In any event, the jury was clearly instructed that defendant was accused of committing assault by means of force likely to produce great bodily injury, and that, accordingly, the prosecution was required to prove the element that the alleged assault was committed by means of force likely to produce great bodily injury. This finding was supported by the evidence, which showed that defendant held the victim down by her neck, pulled her hair, and repeatedly struck her in the face. Therefore, the fact that the verdict form did not specifically state that the jury was making such a finding was not prejudicial to defendant. (People v. Radil, supra, at p. 710.)
We note that the abstract of judgment also mistakenly indicates that defendant was convicted of assault with a deadly weapon. We therefore order the trial court to correct the abstract of judgment to reflect that defendant was actually convicted of assault by means of force likely to produce great bodily injury.
DISPOSITION
The trial court is directed to amend the abstract of judgment to indicate that defendant was convicted of assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1), and then forward a corrected copy of the abstract to the Department of Corrections and Rehabilitations. In all other respects, the judgment is affirmed.
We concur: MCKINSTER J., KING, J.