Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09952
CANTIL-SAKAUYE, J.
This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
A jury acquitted defendant Anthony Eugene Decker, Jr., of possession of an incendiary device (Pen. Code, § 453, subd. (a)), but convicted him of assault with a deadly weapon and felony battery, and found he inflicted great bodily injury on the victim. (Pen. Code, §§ 245, subd. (a)(1), 243, subd. (d), 12022.7, subd. (a).) The trial court sentenced defendant to prison for five years, and defendant timely filed this appeal. We affirm.
Defendant’s father, Anthony Eugene Decker, Sr., was also charged in the information. He entered into a plea bargain and is not a party to this appeal.
BACKGROUND
Gregory Walker testified that in November 2006, he lived in a motor home behind a house in Del Paso Heights. One night in November, “Tony,” defendant’s father, came over twice; once alone and once, about 11:30 p.m., with Monica U. As Tony left, he told Monica to leave, but she wanted to stay with Walker, and an argument about “who she wants to be with” ensued.
Monica had been Walker’s girlfriend, but had two children by Tony. Tony thought the men could share her, but Walker disagreed. Monica said she loved Walker and wanted to stay with him, and Tony “seemed like he was cool with it” and he would have his son, defendant, pick him up. Tony called from the motor home and Walker heard him tell defendant to “pick him up and bring some gasoline.”
About 10 minutes after Tony left, Tony returned and yelled to Monica to come out. Walker saw Tony had a gas can, and Walker could smell gasoline. Walker armed himself with a knife because he did not want Tony to throw gas on him, something Monica had warned him Tony had done before. The knife had a blade about 11 to 12 inches long. Walker stepped out and told Tony that Monica had made her decision and Tony should leave. Then Walker was struck on the left side of his head and, as everything turned red or bright orange, he raised his knife and swore. Walker went to a hospital and had to have surgery to install a steel plate and screws in his face. Walker remembered some things he told an officer, but could not recall saying that he heard Tony threaten to light him on fire or that he saw defendant running to the left.
On cross-examination, Walker testified that the first time Tony came over that night was around 8:00 p.m., and Tony wanted to discuss sharing Monica; Walker did not agree, but asked Tony to bring Monica over. When Tony returned with Monica, the three socialized for several hours. Walker testified while in custody on a fraudulent check charge. He wore jail clothing and had three felony convictions.
Detective Kyle Jasperson testified he spoke with defendant on November 14, 2006. Defendant told the detective that his father asked to be picked up at Walker’s house, but defendant claimed he refused to go. Defendant conceded that it was “a normal thing for his dad to threaten Monica with gas, he uses it as intimidation,” but he denied bringing his father any gas that night or being present. However, after the detective told defendant that his father had confessed, defendant said his father had told him not to say anything. Defendant told the detective he had gone to Walker’s motor home, and his father retrieved a gas can from defendant’s car. His father had asked him to bring gas, which his father used to intimidate Monica, but his father said nothing about using gas against Walker. Defendant brought the gas can, and although he told the detective he had told his father there was no gas in it, defendant never told the detective it was empty. After his father called to Monica, Walker came out with a “big ass knife” in one hand and a beer in the other. Walker “came after” Tony, so defendant struck him with a metal object he had picked up, then defendant fled.
The defense conceded defendant struck Walker with a metal object, but argued he did so in defense of his father. The jury convicted defendant of assault with a deadly weapon and battery, and found he personally inflicted great bodily injury.
The trial judge was unavailable, but defendant agreed another judge could hear posttrial proceedings. Defendant’s new trial motion and a motion to dismiss the enhancement were denied.
The trial court sentenced defendant to five years in prison, consisting of the lower term of two years for assault, enhanced by three years for the infliction of great bodily injury. The court imposed and then stayed (Pen. Code, § 654) a term of two years for the battery count. Defendant timely filed his notice of appeal.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J., HULL, J.