Opinion
A130407
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. PAUL DEMOND SMITH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. VCR202762)
Defendant Paul Demond Smith appeals from a judgment convicting him of assault with a deadly weapon and sentencing him to seven years in state prison. Defendant's attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Defendant was informed of his right to file a supplemental brief, but has not done so. We find no arguable issue and shall affirm.
Background
Defendant was charged by information with one count of attempted murder (Pen. Code, §§ 664, 187 subd. (a)) and one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The information also alleged great bodily injury and serious felony enhancements. (Pen. Code, §§ 12022, subd. (b), 12022.7, subd. (a), 1192.7, subd. (c), 667.5, subd. (c)(8)). Although defendant was initially allowed to represent himself, less than two months later and well before the trial began, counsel was appointed at his request.
At trial, the victim testified that he and defendant, an African-American man, had worked together for a temporary daily labor provider. At the time of the attack he was staying with defendant in his tent in a homeless encampment near the highway in Vallejo. On the evening of the attack, both defendant and the victim had been drinking when they got into an argument over a $5 loan. Defendant pushed the victim to the ground, then ran to his tent to retrieve a knife. The victim had previously seen the knife in defendant's tent and described it as a machete that was between 14 and 16 inches long and between three and four inches wide. Defendant charged at the victim with the knife raised above his head. The victim raised his arm to protect his head and defendant hit and caused a substantial cut in the arm with the knife. The victim ran down the trail until he met a stranger, who called the police.
A recording of the stranger's 911 call was played for the jury. In the recording, when asked to describe the assailant, the victim described a White hillbilly. Defendant is an African-American. At trial, he explained that he thought the dispatcher was asking for a description of the man placing the 911 call, rather than the man who had attacked him. He noted the similarity between his description and a photograph of the stranger who made the call. The victim insisted he knew all along that it was defendant who attacked him. When the police responded to the scene, the victim identified defendant in a photograph as the man who attacked him.
The jury found defendant not guilty of attempted murder and the related lesser included offense of attempted voluntary manslaughter but found him guilty of assault with a deadly weapon and the related great bodily injury enhancement.
Prior to sentencing, defendant submitted a written statement to the court stating, "I did not commit a crime and if you listen to defense exhibit B and C you will [hear] the victim describe his attacker as a white hillbilly guy. Not a black guy. I'm innocent of any and all crimes that are being pend[sic]on me." The court sentenced defendant to the upper term of four years for the conviction and a consecutive three-year term for the enhancement. Defendant filed a timely notice of appeal.
Discussion
Substantial evidence supports defendant's conviction and there was no abuse of discretion with respect to the selection and imposition of defendant's sentence. Defendant was adequately represented by counsel at trial.
Although defendant has not filed a supplemental brief, he did file a request to replace his court-appointed counsel on appeal, which this court previously denied. In that motion, defendant claimed that he has "repeatedly told [his attorney] about existing evidence that clearly points to my innocents [sic]and exhibits that shows ineffective assistance of my trial counsel, but he has refused [to] entertain any of the information I shared with him." Defendant has not identified the documents or exhibits to which he refers. To the extent that he is referring to the tape of the 911 phone call in which the victim identifies his attacker as a white hillbilly, we note that that evidence was presented to the jury at trial. The victim explained the apparent contradiction and the jury believed him. Accordingly, that evidence provides no basis to overturn the judgment.
Disposition
The judgment is affirmed.
Pollak, J. We concur: McGuiness, P. J. Jenkins, J.