Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BLF004547, H. Ronald Domnitz, Judge. (Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Alexander Simpson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
I
INTRODUCTION
An information filed on September 25, 2007, charged defendant and appellant George Melford Harvey with (1) terrorist threat under Penal Code section 422 (count 1); (2) assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1) (count 2); and (3) elder abuse likely to produce great bodily harm or death under section 368, subdivision (b)(1) (count 3).
All statutory references are to the Penal Code unless otherwise specified.
On March 4, 2008, a first amended information was filed. It alleged a single count—elder abuse likely to produce great bodily harm or death under section 368, subdivision (b)(1).
On March 6, 2008, after a three-day jury trial, the jury found defendant not guilty of elder abuse likely to produce great bodily harm or death under section 368, subdivision (b)(1); but found defendant guilty of the lesser included offense of elder abuse under section 368, subdivision (c). The same day, the trial court granted defendant three years’ formal probation.
Defendant appeals.
II
FACTS
A. Prosecution Case
On August 24, 2007, defendant entered the Blythe sheriff’s station and spoke with Sergeant Kent Krisell. At this time, defendant was 68 years old and in a wheelchair. Defendant was upset about an order that he had received to vacate his residence earlier that morning. Defendant had been evicted by his niece, Linda Wasson. Defendant felt that the eviction was illegal, and informed Sergeant Krisell that he intended to return to the residence. The sergeant told defendant he was not allowed back at the residence. However, if defendant wanted to retrieve his personal belongings, the sheriffs would accompany defendant back to the residence to collect them. Defendant stated that he was going home, and stated, “If I see Jean anywhere near me, I’m going to kick her fucking ass.” Jean Dunlap is the owner of the trust deed to the property and defendant’s sister. At the time of the incident, Dunlap was 73 years old.
Sergeant Krisell strongly encouraged defendant not to return to the residence. Defendant left the station shortly thereafter. Sergeant Krisell radioed to Deputies Steve Huffman and Steven Paixo; the sergeant told the deputies to travel to the residence to make sure there were no problems between defendant and Dunlap.
Defendant drove to the residence. Dunlap and her daughter, Linda Wasson, were just leaving; Dunlap was driving Wasson to work. Dunlap had just pulled out of the driveway and was turning onto the next street when she saw defendant driving in his van towards them. Dunlap backed her truck up, and defendant pulled up next to the truck and stopped. Defendant and Dunlap got out of their cars, and defendant approached her. Defendant stated to Dunlap, “I’m going to kill you, bitch.”
An altercation ensued. Defendant hit Dunlap on the left side of her neck. Dunlap’s head spun, she became dizzy, and she lost her equilibrium. Her heart began to beat very fast; she had to sit down. Dunlap thought she was going to die. Dunlap felt her pacemaker give her a shock because her heart was not beating regularly.
Wasson was in the passenger seat of Dunlap’s truck. When defendant hit Dunlap, Wasson jumped out of the truck and ran around to the other side of the truck. Wasson hit defendant in the back as hard as she could. Defendant then got back into his vehicle and drove towards the gate of the residence.
Deputy Paixo arrived at the residence in a marked patrol vehicle as defendant was driving towards the gate. It appeared to Paixo that defendant was about to ram the gate. Defendant saw Paixo, then stopped his van alongside the gate to the property. Deputy Paixo began to separate Dunlap, Wasson and defendant. At this time, Deputy Huffman arrived. Deputy Huffman stood by defendant, and Deputy Paixo talked to Wasson and Dunlap. Dunlap told Deputy Paixo that defendant had tried to kill her.
After the incident, Deputy Paixo took photographs of Dunlap’s injury and the area around her pacemaker. There was some bruising around Dunlap’s left shoulder where defendant had struck her. Dunlap did not seek medical treatment, despite Deputy Paixo’s offers to help her get medical attention. Dunlap did not seek treatment because of her inability to pay for it. After the incident, Dunlap went home with her daughter and got oxygen.
B. Defense Case
In her testimony, Wasson admitted that she had been convicted for drug possession for sale in Alabama. She also admitted that she and defendant were currently in litigation against each other, and that defendant had obtained a judgment of $4,753 against her.
Defendant testified. He stated that in 1984, he had sustained severe injuries to his spine after being in two automobile accidents. As a result, defendant was prescribed to a wheelchair to get around. Defendant was not paralyzed, and could walk a few steps while holding onto something to keep from falling down.
On the day of the incident, defendant traveled to the Blythe sheriff’s station to discuss the eviction notice he received. Defendant spoke with Sergeant Krisell. Defendant, however, denied telling the sergeant that if he saw Dunlap, he was going to “kick her fucking ass.” Defendant demanded that the sheriffs accompany him to the residence to retrieve his belongings.
Defendant then left the station and drove to the residence. He saw Dunlap and Wasson backing out of the property as he approached. Defendant pulled up alongside Dunlap’s truck. Dunlap jumped out and defendant got out and leaned against his van. Defendant demanded his clothes and property. Dunlap responded, “[Y]ou’re not getting a goddamn thing.” Dunlap then shoved defendant back against his vehicle. In response to the shoving, defendant slapped Dunlap with an open hand.
After defendant slapped Dunlap, Wasson jumped out of Dunlap’s truck, approached defendant, and hit him in the back. Defendant then drove his van to the front of the property and parked. He denied that he ever attempted to ram the gate.
III
ANALYSIS
After 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, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his three-page supplemental letter brief, defendant claims that he received ineffective assistance of counsel (IAC) and that the trial court lacked jurisdiction.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
First, we address defendant’s IAC argument. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Dennis (1998) 17 Cal.4th 468, 540-541.) When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426.)
In this case, defendant contends that his counsel failed to defend him at trial because his trial counsel did not present evidence, failed to object to evidence, allowed the prosecution to present prejudicial photographs, and held secret meetings with the judge and the prosecutor. A review of the record, however, indicates that defendant’s trial counsel was engaged in representing defendant during the trial. Defense counsel cross-examined Dunlap, Deputy Huffman, Wasson, and Deputy Paixo. He did not cross-examine Sergeant Krisell. However, during the sergeant’s testimony, defense counsel was actively engaged in making the appropriate objections. Our review of the transcript demonstrates counsel made a strategic decision not to cross-examine the sergeant. Instead, counsel countered some of the sergeant’s statements through defendant’s testimony.
In sum, defendant cannot show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms. Similarly, he cannot demonstrate that counsel’s alleged deficient representation prejudiced him, i.e., there is a reasonable probability that, but for counsel’s purported failings, defendant would have received a more favorable result. (People v. Dennis, supra,17 Cal.4th at pp. 540-541; Strickland v. Washington, supra, 466 U.S. at p. 687.)
Next, defendant claims that the trial court lacks subject matter jurisdiction over defendant. Defendant, however, fails to provide any legal analysis to support his contention. “‘Where a point is merely asserted . . . without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)
We have now concluded our independent review of the record and find no arguable issues.
IV
DISPOSITION
The judgment is affirmed.
We concur: Richli J., Gaut J.