Opinion
G053850
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. JUAN DE DIOS DELGADO FLORES, Defendant and Appellant.
Kristen Owen, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF2911) OPINION Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In the first part of a bifurcated trial, a jury found defendant Juan De Dios Delgado Flores not guilty of petty theft as charged in count one of the amended information. The jury found him guilty of assault with force likely to produce great bodily harm as charged in count two, and found it to be true he personally inflicted great bodily injury on Adam M, the victim. The jury also found defendant guilty of assault with a deadly weapon as charged in count three, and found it to be true he personally inflicted great bodily injury to Adam M.
The trial court conducted the second part of the trial, finding the allegations of prior crimes to be true. The court exercised its discretion and struck the enhancements on both counts two and three, and then sentenced defendant to eight years in state prison.
A police officer was in the passenger seat of a marked patrol unit driving through Peak Park, in Buena Park, in October 2015 when someone said there was a fight in the restroom. The officer testified: "We saw one male who was walking southbound toward El Dorado in the park toward the sand box or toward the playground area. And then I saw a subject walk out of the restroom and then go down to his knees. As he exited the restroom, he went down to the ground, and I saw that he was injured . . . . He was bleeding." He had a "pretty good size laceration on the center of his nose" and "other scratches on his face." The police officer testified Adam M. was still on the ground, and "slightly out of it" and "seemed like he was in pain," when he spoke with him. He said Adam M. pointed to defendant and described what happened.
Adam M. testified he was homeless and had been living in the park for about four months when he was attacked on October 27, 2015. He said while he was sleeping the day before, October 26, 2015, defendant stole his pocket knife and Adam M. saw defendant walking away. The next day, October 27, Adam M. was sleeping when he felt something brush up against him. He jumped up and was face to face with defendant. According to Adam M., defendant said he owed him money, and Adam M. responded, "I don't owe you no money." The two started fighting and defendant ran away. Shortly thereafter, defendant was back again, and Adam M. realized defendant was trying to steal his flashlight. Adam M. grabbed his cell phone to call a friend and caught a movement. As he looked up, he realized he "was getting smashed in the face with my flashlight." Adam M. said he tried to fight defendant, but "there was blood all over the place" and he could not see.
Adam M. said he went into the bathroom to try to bandage himself. He was sitting on a toilet holding tissue up to his face trying to stop the bleeding and "the door was kicked in, and he came in . . . and he just started hitting me again. And so I'm trying to fight him off of a toilet seat and it [sic] wasn't very much I could do." Adam M. said defendant used his fists. He said he received "a few shots to the body, but for the most part it was mainly to the face because the way I was sitting."
Adam M. was placed in an ambulance and taken to the hospital. His nose was "pushed to the side," and "it took like 18 stitches and two staples to close my face back up." He described the "nasty scar" that begins at the bridge of his nose then goes down the left side of his face. He said his "nose is still crooked."
At the conclusion of evidence for the People's case-in-chief, but before the People rested, the prosecutor moved "to conform to proof," and "charge count [one] as a petty theft [under Penal Code, section] 484 and not proceed on the charged count [one] of the information as a [Penal Code, section] 211." The prosecutor also made another request to conform to proof to "add a count [three], [Penal Code, section] 245[, subdivision] (a)(1) with a [great bodily injury] enhancement, the weapon being a metal flashlight, with a date of violation of October 27th, 2015." After ascertaining there was evidence about the attack with the flashlight at the preliminary hearing, the court concluded defendant's substantial rights were not prejudiced and granted the motion to amend the information.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument in defendant's own behalf. That period has passed, and we have received no communication from defendant. Pursuant to Anders v. California (1967) 386 U.S. 738, 744, 745, counsel listed several unbriefed issues that do not refer to anything in the record that counsel thought might arguably support the appeal:
"A. Did the court abuse its discretion in granting the People's motion to amend the information to add count three after the People's case-in-chief?
"B. Was there sufficient evidence to support the jury's verdict?
"C. Did the court err in granting the People's motion to admit the victim's statement to law enforcement over the defense objection?
"D. Did the court err in denying the defense motion to reduce count three to a misdemeanor?
"E. Should the court have stayed one of the counts per Penal Code section 654?"
We have examined the record. We conclude substantial evidence supports the verdicts, the trial court did not abuse its discretion or otherwise err, and there are no arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)
The judgment is affirmed.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.