Opinion
B330698
04-25-2024
THE PEOPLE, Plaintiff and Respondent, v. DAMION ALLEN, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA080966 Manuel Almada, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
BAKER, ACTING P. J.
During a visit to the home of his mother and stepfather in January 2021, Damion Allen (defendant) got into a verbal argument with his stepfather, which escalated into a scuffle. After the two men disengaged, defendant retrieved a pistol from his car and shot his stepfather in the leg, breaking his femur.
A jury convicted defendant of assault with a firearm (Pen. Code, § 245(a)(2)) and found true allegations that he personally used a firearm (§ 12022.5(a)) and caused great bodily injury (§ 12022.7(a)). The trial court sentenced defendant to 14 years in prison: four years (the high term) for the assault conviction plus 10 years (the high term) for the firearm allegation (the court imposed and stayed a three-year sentence for the bodily injury allegation). In imposing the high term for both the assault and the firearm enhancement, the court found the factors in aggravation "greatly" outweighed those in mitigation.
Undesignated statutory references that follow are to the Penal Code.
On direct appeal, a different panel of this court reversed and remanded for resentencing. This court held that when the trial court imposed the high term for both the base offense and the firearm enhancement the court erroneously relied on aggravating factors which had not been found true by the jury or stipulated to by defendant and should have considered defendant's youth as a mitigating circumstance.
On remand, the trial court held a resentencing hearing. The court considered defendant's age at the time of the offense and applicable aggravating and mitigating sentencing factors and imposed the same 14-year prison sentence.
Defendant appealed and this court appointed counsel to represent him. After examining the record, counsel filed an opening brief that raises no issues and asks us to independently review the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436. On January 23, 2024, this court advised defendant he had 30 days to personally submit any contentions or issues he wanted us to consider. We received no response.
We have examined the appellate record and are satisfied defendant's attorney has complied with the responsibilities of counsel and no arguable issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 278-82; People v. Kelly (2006) 40 Cal.4th 106, 12224; Wende, supra, 25 Cal.3d at 441.)
DISPOSITION
The judgment is affirmed.
We concur: KIM, J., LEE, J. [*]
[*] Judge of the San Bernardino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.