Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F13255
Premo, J.
Defendant Nicholas Joshua Mackin pled guilty to felony aggravated assault (Pen. Code, § 245, subd. (a)(1)) and the trial court found true an enhancement for personally inflicting great bodily injury. (§ 12022.7, subd. (a)).) Defendant was sentenced to five years in state prison and was ordered to pay $9,071.17 in victim restitution and the same amount as a parole revocation restitution fine. No restitution fine was ordered.
Further statutory references are to the Penal Code unless otherwise stated.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument on his own behalf within 30 days. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant did not respond.
FACTS
On April 24, 2006, defendant, Shaun Gallagher, and another man were walking along the railroad tracks when 52-year-old Robert Bartle passed them walking his dog. Defendant punched Bartle in the face and as he lay on the ground, kicked him in the upper body or head, leaving blood on his tennis shoe. Gallagher repeatedly punched or kicked Bartle as he lay on the ground. He also threw stones on Bartle’s head and finally lifted a heavy piece of metal and dropped it near, but apparently not on, Bartle’s head.
Two witnesses found Bartle on the tracks with severe head injuries. He was unable to speak. One of the witnesses observed the suspects running away. A sheriff’s canine team tracked them and defendant was taken into custody. Defendant was distraught and remorseful. He said “something was said” which made him feel threatened by Bartle.
Bartle suffered a left frontal lobe brain contusion, a six-centimeter laceration to the right rear of the scalp, a complex array of lacerations to the left brow ridge, and abrasions to the left side of the face. He did not suffer a fractured skull, which caused the treating physician to believe that when he fell, he hit the back of his head on the metal rail which caused a contrecoup brain injury to the frontal lobe and a concussion. Subsequent blows to the head made the original injury worse. He was kept in a medically-induced coma and was intubated.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.