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People v. Acuna

Court of Appeals of California, Sixth Appellate District.
Nov 21, 2003
H026048 (Cal. Ct. App. Nov. 21, 2003)

Opinion

H026048.

11-21-2003

THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO ACUNA, Defendant and Appellant.


Defendant Jose Acuna was charged by amended information filed December 5, 2002, with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) — count 1), and assault with a deadly weapon by a prisoner (§ 4501 — count 2). The information further alleged that defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in the commission of the offenses, and that defendant had four prior convictions that qualified as prior strikes (§ 1170.12, subd. (c)(1)). On December 12, 2002, the information was amended to add count 3, a felony violation of section 4502, subdivision (a) (possession of a deadly weapon by a prisoner). Defendant entered a plea of no contest to count 3, and admitted one prior strike allegation, on condition that the remaining counts be dismissed at the time of sentencing, that he receive a maximum term of eight years, and that the other alleged strikes be dismissed. On January 30, 2003, the trial court denied defendants request to strike the remaining strike. It then sentenced defendant to the aggravated term of four years, doubled under the three strikes law, the sentence to run consecutive to any sentence defendant was currently serving. In choosing the aggravated term the court noted that defendant has a number of other serious offenses besides the prior strike (see Cal. Rules of Court, rule 4.421(b)(2)), and that the weapon that was the subject of his present conviction was used to stab a victim a number of times. The court found no factors in mitigation, and found that the factors in aggravation outweighed those in mitigation.

We appointed counsel to represent the defendant in this court.

Appointed counsel on appeal has filed an opening brief that states the case and the facts but raises no specific issues. The brief has "identified a point for review," that the trial court erred in considered facts underlying the dismissed counts in imposing the upper term (see People v. Harvey (1979) 25 Cal.3d 754, 758), without acknowledging that the trial court stated a valid aggravating factor that supports imposition of the aggravated term. (See People v. Osband (1996) 13 Cal.4th 622, 728.) We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written argument from defendant.

Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.

The judgment is affirmed.

WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J. --------------- Notes: Further statutory references are to the Penal Code unless otherwise stated.


Summaries of

People v. Acuna

Court of Appeals of California, Sixth Appellate District.
Nov 21, 2003
H026048 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Acuna

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO ACUNA, Defendant and…

Court:Court of Appeals of California, Sixth Appellate District.

Date published: Nov 21, 2003

Citations

H026048 (Cal. Ct. App. Nov. 21, 2003)