Opinion
E066888
05-16-2017
THE PEOPLE, Plaintiff and Respondent, v. ANSELMO GOMEZ, Defendant and Appellant.
Anselmo Gomez, in pro. per.; Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1501991) OPINION APPEAL from the Superior Court of San Bernardino County. Katrina West, Judge. Affirmed. Anselmo Gomez, in pro. per.; Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Anselmo Gomez guilty of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1), count 1.) At the sentencing hearing, a trial court found four aggravating factors, and no mitigating factors. The court sentenced defendant to the middle term of three years, with 444 days of presentence custody credits.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
Defendant now appeals. We affirm.
FACTUAL BACKGROUND
On May 25, 2015, S.P., who was a day laborer, went to a Home Depot parking lot looking for work. J.S. (the victim) was also there. Defendant approached S.P. and the victim, and he asked the victim if he used people from Home Depot to work for him, if he paid well, and if he used people who worked with metal. The victim questioned why he was asking, since defendant had never worked with him. Defendant started to raise his voice, and he told the victim that if he owed money to someone from Mexico he had better pay it because he (defendant) was going to cut off his head. Defendant appeared to be drunk, and said, "You want me to get the blade?" Defendant went to his truck. The victim kept talking to S.P. Suddenly, S.P.'s face changed, and he ran away. When the victim turned around, he saw defendant approaching him with a machete. Defendant said, "I told you I was going to kill you." Defendant then made stabbing motions with the machete toward the victim. The victim attempted to block the machete, and it cut his finger. Defendant raised the machete over his head, so the victim lunged toward him, and the machete struck the victim on the back. The victim grabbed defendant's hands, and the machete fell to the ground. He then hit defendant in the stomach with his knee. S.P. came over and took the machete. Defendant asked for the machete back, but S.P. refused. The victim called the police. S.P. left the scene and took the machete with him, but later turned it in to the police.
DISCUSSION
Defendant 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 no potential arguable issues. 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. Since defendant does not speak or write English, he sent his counsel a list of issues he wanted this court to consider. His counsel had the list translated into English and submitted a supplemental letter brief containing a direct translation of the issues. Defendant contends that he was "sentenced unjustly of a crime that [he] did not commit." He then lists numerous items, including that he was freed within 72 hours of being detained because "they had nothing to pursue against [him]"; he did not remember the police reading his rights upon arrest; his attorney told him he was accused of hitting the victim because he said the victim was living with his wife, which was false; he never possessed a weapon; the weapon presented as evidence was not his; neither the police nor the prosecution "made prints" from the weapon; the victim and witnesses "declared in court" differently than what they reported to the police; and the "prints" on the victim's back could have been from his work as a plumber. Defendant concludes that these "reasons" demonstrate "the impartiality and injustice in the decision by the judge."
Defendant appears to be arguing that the court abused its discretion in sentencing him. Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
The trial court here stated four valid aggravating factors and only one mitigating factor, yet sentenced defendant to the middle term. Considering that a single factor in aggravation will support the imposition of an upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433), we cannot say the court abused its discretion in sentencing defendant.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.