Opinion
G054591
11-28-2017
THE PEOPLE, Plaintiff and Respondent, v. HARYER ALAN DOMINGUEZ MADRID, Defendant and Appellant.
Stephanie M. Adraktas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF0720) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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Appellant Haryer Madrid was charged with second degree robbery (Pen. Code, §§ 211, 212.5 (c)) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245 (a)(4)). A jury was unable to reach a verdict on the robbery count and it was dismissed. But they convicted him of the assault charge. Thereafter, the court found it to be true that he had suffered a prior "strike" conviction. At sentencing, the court dismissed the strike prior in the interest of justice and imposed a high term of four years for the assault by means likely to produced great bodily injury. Appellant filed this appeal, and we appointed counsel to represent him.
The court also imposed a concurrent three-year sentence for an unrelated probation violation, but that was not challenged on appeal and is not before us. --------
Counsel did not argue against her client, but advised this court she could find no issues to argue on appellant's behalf. (People v. Wende (1979) 25 Cal.3d 436.) She filed a brief which set forth the facts of the case and advised us she was unable to find an appellate issue she could ethically argue.
Appellant was given 30 days to file written argument in his own behalf if he chose to. That time has expired and no argument has been received. We have therefore reviewed the record ourselves to see if we could find any issues - not necessarily issues that would win, but issues that might be worth considering. We could not. As the facts recited below demonstrate, there was very little that could be done in appellant's behalf, either in the trial court or here.
FACTS
The facts of this case suggested both assault and robbery. As Anthony Barajas was walking his three-wheeled bike toward a Wal-Mart, appellant approached him and asked some questions about the bike. He asked to take a ride but Barajas refused him. His response was to hit Barajas repeatedly in the face. When Barajas fell, appellant kicked him in the head, all the while struggling with him over the bike, which Barajas clung to doggedly, until appellant wrested it away and rode off on it.
Three witnesses observed the assault. One said it was dark and while appellant resembled the attacker, she could not identify him at trial. Two others did. One witnessed the arrest of appellant as he rode away on the bike and confirmed that the police had the man he saw commit the assault. Barajas identified appellant in a field show-up, but could not repeat the identification 14 months later at trial.
Identity was not an issue at trial. Instead, a clinical neuropsychologist testified that appellant is schizophrenic. It was his opinion that during the attack appellant was "actively suffering from symptoms of schizophrenia, specifically disorganized thinking, disorganized behavior, some sort of hallucinations." He admitted, however, that schizophrenia is something that "comes and goes" and that a schizophrenic can function - well or poorly - between episodes.
The defense was that appellant had not formed the specific intent necessary for a robbery conviction. The assault was conceded: "The right decision in Count 2 [felony assault] based upon, not because I say, and not because the district attorney wants, but because the evidence supports a conviction of Count 2 . . . ."
And indeed, the jury deadlocked for acquittal on the robbery count, but convicted appellant of assault by means of force likely to produce great bodily injury.
DISCUSSION
As the facts related above demonstrate, there is really nothing to argue on appeal. The result seems as good as appellant could possibly hope it would be. He was identified by two witnesses (three if you include the victim's in-field identification), including one who saw the police arrest him at the time of the offense, and he simply had no defense to the assault charge.
The only issue appellate counsel could conjure up was whether the court erred in not giving a "defense of others" instruction. When the court discussed jury instructions with counsel prior to the arguments of counsel, it noted that defense counsel had suggested an instruction on defense of others. It observed, "There's no evidence for that." The court said he was not inclined to give the instruction, but defense counsel said it was there just in case the evidence supported it and said the court was right that no such evidence was yet in the record: "I think the court is right. I don't foresee it changing." Later that discussion was continued and the court again said, "There's no evidence for that at all." Defense counsel lodged no objection.
We agree with the trial court. There was simply no evidence suggesting appellant was defending anyone. He asked about the bicycle and when Barajas would not let him ride it, he began punching him. The assault was completely out of the blue, and there was nothing to suggest defendant thought he or anyone else was under attack. That was part of the neuropsychologist's diagnosis of schizophrenia, and it was the whole reason he was called as a witness.
If there was a hope of establishing some kind of imperfect self-defense case here, nothing was done to further it in the trial and it was never suggested at argument. There simply was nothing on which to hang that hat. After the brief instructional conference we describe above, there was never any suggestion of addressing that issue and defense did not do so in closing argument.
The defense case was wholly based on the expert testimony and the contention appellant was suffering a schizophrenic episode at the time of the attack. The jury seems to have had a reasonable doubt about defendant's mental state as far as a specific intent to take another's property, but not as to the general intent crime of assault. That was a reasonable way to conduct the defense and it resulted in a reasonable verdict.
We have reviewed the transcripts for other issues and can find none. The prosecution case was not complicated; it was eyewitness identification. While the defense was more exotic, it was not hindered in any way by the trial judge and there is nothing about the jury deliberations or verdict to suggest they were in any way confused by it. If anything, their verdict demonstrates their grasp of the distinctions involved.
In short, we find ourselves in agreement with appellant's appellate counsel. We have carefully reviewed the record and cannot conceive of any issue that could be raised on this appeal.
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.