Opinion
D060666
05-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JAMES HENDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD233475)
APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed.
A jury convicted James Henderson of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true allegations of personal infliction of great bodily injury within the meaning of section 12022.7, subdivision (a). The court sentenced Henderson to an aggregate term of nine years in prison. The sentence was composed of the four-year upper term for count 1 plus three years for the great bodily injury enhancement. The court treated count 2 as the subordinate term and imposed a consecutive two-year term for that count and its enhancement.
All further statutory references are to the Penal Code unless otherwise specified.
Henderson filed a timely notice of appeal.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising possible, but not arguable issues. We offered Henderson the opportunity to file his own brief, but he has not responded.
STATEMENT OF FACTS
On the evening of April 6, 2011, Henderson was in the Boulevard Bar in San Diego. At that time Henderson was 66 years old, had one prosthetic leg, and used a wheelchair.
At about midnight, Henderson got out of his wheelchair and went to the restroom. While Henderson was gone one of the victims, Brent Hames, sat in the wheel chair, went through Henderson's property and took his tobacco. At that time, Hames was heavily intoxicated and was obnoxious.
When Henderson returned he angrily confronted Hames and demanded that he get out of the chair and return Henderson's tobacco. During the struggle that followed Henderson struck Hames in the head with his cane and ultimately stabbed Hames in the abdomen causing hospitalization and severe injuries.
Cresencio Martinez, an off duty bar employee, attempted to stop Henderson. In the struggle that followed Martinez was stabbed in the leg.
The parties stipulated that both victims received medical treatment at Scripps Mercy Hospital for their stab wounds and that such wounds constituted great bodily injury.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating counsel is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies the possible, but not arguable issues:
1. Whether the stipulation regarding the injuries to the victims improperly removed an essential element of the crimes from the jury's determination;
2. Whether the court erred in failing, sua sponte, to give a jury instruction on simple assault; and
3. Whether the trial court abused its discretion in imposing upper term and consecutive sentences.
We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues. Competent counsel has represented Henderson on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
AARON, J.