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People v. Barek

California Court of Appeals, Fourth District, First Division
Jul 2, 2008
No. D052051 (Cal. Ct. App. Jul. 2, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. GEORGE BAREK, Defendant and Appellant. D052051 California Court of Appeal, Fourth District, First Division July 2, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCD206522, Frank A. Brown, Judge.

AARON, J.

A jury convicted George Barek of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found he personally used a deadly weapon, to wit, a metal pipe within the meaning of section 1192.7, subdivision (c)(23).

Statutory references are to the Penal Code.

FACTS

As of Sunday, April 15, 2007, Barek had been dating Janette Ponce for two years; Ponce is a transgender individual who presented herself as a female. Barek lived with his parents and a brother next door to the family-owned Fern Street Market. Usually, Barek and Ponce went out on dates on weekend nights, and had tentative plans to go out on the evening of April 15. However, they could not reach each other by telephone and Ponce became upset, thinking Barek had gone out with someone else.

At approximately 9:00 p.m. Ponce took the bus to Barek's residence to surprise him. In the backyard Ponce found Barek sitting on a couch and talking with Mario Linares, a friend. Ponce started yelling at Barek, who repeatedly asked her to leave and go home. Barek said he would talk to her later.

Ponce went inside the residence and stayed in Barek's bedroom for 40 minutes. Barek's father then drove Ponce to her residence, where she stayed for about 30 minutes before returning to Barek's residence with a friend, Christian Sotelo, who was described as a tall, muscular individual.

While Sotelo waited by the gate, Ponce approached Barek, who was still sitting on the backyard sofa and talking with Linares. Ponce yelled at Barek, who told her to leave. Ponce refused, saying she wanted to talk to him. Linares left. After about 10 minutes of arguing, Barek and Ponce were face to face and Ponce bit Barek's lower lip. She also may have scratched his neck. Barek grabbed either a metal pipe or a flexible wood stick and swung it at Ponce.

Ponce called 911, and San Diego police officer Jeffrey Swett responded to the scene. Swett observed a large lump on Ponce's left elbow; Barek had a bruised lower lip. Barek told Swett that he had hit Ponce with a metal pipe after she refused to leave his house. Swett believed that Barek was under the influence of alcohol.

Ponce told Swett that Barek had hit her on the left elbow with a pipe or hard object. Ponce also told the officer that Barek had grabbed her by her arms and pushed her; she bit his lower lip to get him to let her go.

After police officer Lorraine Tangog arrived at the scene, Barek spontaneously told her: "I confess[]. I hit her with a pipe because we [the Fern Street Market] have been robbed so many times. Take me to jail."

Ponce told the paramedics that the pain to her elbow was a 10 on a scale from one to 10 and that she was struck three times on her left arm while defending herself. The paramedics applied a splint to her elbow and gave her morphine for the pain.

Ponce told the emergency room doctor at Scripps Mercy Hospital that she argued with her partner, who struck her three times on the left arm with a metal pipe. Ponce suffered a minimally displaced fracture or chip through the distal humerus. The doctor placed Ponce's elbow in a sling, referred her to an orthopedic surgeon and gave her vicodin for pain. According to the doctor, this type of injury usually heals in four to six weeks and does not result in long-term disability.

Ponce did not want to press charges. She gave Barek's counsel a letter stating that she would not testify against Barek because she still loves him. Ponce testified that Barek did not hit her; rather she had fallen backward and hit the fence with her elbow. Ponce said she had lied to officer Swett because she was nervous and agitated. Ponce also testified that she did not remember telling a paramedic or hospital staff that Barek had swung a metal pipe, striking her three times on her left arm.

Barek testified that he swung a wood stick at Ponce, but said that he did not strike her. Rather, according to Barek, Ponce fell backward and hit her elbow against a fence.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the trial court properly excluded evidence that Barek told Linares that Ponce had bit him; (2) whether the trial court abused its discretion by denying Barek's motion to reduce the conviction to a misdemeanor; and (3) whether all of the probation conditions were properly imposed.

We granted Barek permission to file a brief on his own behalf. He has not responded.

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Barek on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J., NARES, J.


Summaries of

People v. Barek

California Court of Appeals, Fourth District, First Division
Jul 2, 2008
No. D052051 (Cal. Ct. App. Jul. 2, 2008)
Case details for

People v. Barek

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GEORGE BAREK, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 2, 2008

Citations

No. D052051 (Cal. Ct. App. Jul. 2, 2008)