Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FCH800451. Gerard S. Brown, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster Acting P.J.
On August 25, 2008, an information alleged that on or about August 7, 2008, defendant and appellant Pete Vicario, Jr., committed the crime of assault with a deadly weapon, by means likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(1). The information also alleged that defendant personally inflicted great bodily injury upon Martin Lopez (the victim) within the meaning of section 12022.7, subdivision (a).
All statutory references are to the Penal Code unless otherwise specified.
After a five-day jury trial, the jury found defendant guilty on the assault count and found the allegation, that defendant personally inflicted great bodily injury, true. The trial court sentenced defendant to a total term of six years in prison—the midterm of three years on the assault count plus three years on the personal infliction of great bodily injury allegation—and imposed appropriate fines and fees.
Defendant appeals.
I
FACTUAL AND PROCEDURAL HISTORY
A. Prosecution Case
On August 7, 2008, the victim was in the front yard of his residence in Chino, California, at approximately 8:30 pm. He was talking to his neighbor, Daniel Jimenez. The victim had been drinking that day to celebrate his nephew’s birthday; he could not remember how much alcohol he had consumed. The victim had known defendant for over 25 years and considered defendant to be a “good friend.”
The victim could not recall any of the events that occurred on August 7, 2008, which led to the charges against defendant. After the victim established that the voice on two August 7, 2008 audio recordings was his, the prosecution played the audio tapes to the jury. On the audio tapes, the victim told an officer that he had exchanged unpleasant words with defendant’s daughter at the local liquor store on August 7, 2008. After returning home, the victim was standing in his front yard, holding his three-year-old daughter. He was struck on the head two or three times from behind by defendant. Defendant struck the victim with a small bat. During the altercation, defendant told the victim not to speak to defendant’s daughter “like that” and that the victim should not disrespect his daughter.
Two audio tapes were played for the jury. These two tapes were transcribed, and copies of the transcriptions were provided to the jury, with the concurrence of defense counsel. These transcripts were marked and admitted into evidence. Copies of Exhibits 16 and 18 are at pages 163-184 and pages 185-191, respectively, of the clerk’s transcript.
Hearing the two audio tapes did not refresh the victim’s recollection of any of the events on August 7, 2008. The victim stated that he recalled receiving medical treatment at Chino Valley for a blow to his head on that date. He received 11 stitches to the left side of his head.
The victim’s neighbor, Jimenez, was talking with the victim when the assault occurred. While the two men were talking, defendant approached from behind and struck the victim in the back of his head with a small piece of wood. Jimenez recognized the assailant as defendant, a long-time resident of the neighborhood. Defendant yelled at the victim something about disrespecting defendant’s daughter. Jimenez did not recall the victim having any child in his arms when he was struck by defendant.
Officer Gustavo Alvarran identified several photographs taken of the victim’s head injury. The officer personally observed a two-inch laceration on the victim’s head and accompanied the victim to the hospital. Although the victim appeared to have consumed alcohol that night, he clearly identified defendant as his assailant.
Francesca Gonzales had been dating defendant since July of 2008. On August 7, she was at his house. At approximately 7:30 pm., she and defendant walked to Chino High School. They walked around the school for about two hours, until 9:30 pm. Gonzales did not report this information to the police at any time prior to trial. She provided this information for the first time to a defense investigator in October of 2008. She did not see defendant strike anyone in the evening of August 7, 2008.
Gloria Vicario is defendant’s mother. On August 7, 2008, at approximately 7:30 pm., she saw defendant in the front yard of her house with Gonzales. She did not see defendant after that time. Vicario did not recall telling a female officer on August 7, 2008, that defendant left around approximately 8:45 pm., and was alone when he left.
Officer Katherine Kreps interviewed Vicario at approximately 9:15 pm. on August 7, 2008. Vicario informed Officer Kreps that defendant had left her house approximately 30 minutes earlier, around 8:45 pm. Defendant was arrested by Officer Joseph McArdle on August 10, 2008.
Samantha Jones, a registered nurse, worked in the emergency room at Chino Valley Medical Center on August 7, 2008. She reviewed the victim’s medical chart. The victim sustained an injury to the scalp that was approximately four centimeters in length and required 11 staples to close. In Jones’s opinion, the type of injury sustained by the victim could result in paralysis, a stroke, and even death. The paramedic’s report indicated that the victim’s injury was caused by multiple hits with a baseball bat.
B. Defense Case
J. Perez, age 13, is defendant’s nephew. On August 7, 2008, several of his family members and Francesca Gonzales (defendant’s girlfriend) were at his home. Perez and defendant’s daughter, M. Vicario, went to a local liquor store around 8:00 pm. As they were walking to the store, he heard someone calling M.’s name, but nothing else happened. They left the store and returned home. No verbal or physical confrontation occurred with any person. When Perez and M. returned home, both Gonzales and defendant were not there.
On cross-examination, Perez recalled telling the police on August 7, 2008, that the victim had called M. unpleasant names. Perez did not recall telling the police that defendant was at home when Perez and M. returned from the liquor store. After reviewing the police report, Perez recalled that defendant and Gonzales were in the front yard when Perez and M. returned from the liquor store. Perez never saw M. speaking with defendant after Perez and M. returned from the liquor store.
II
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
We concur: Richli J. Miller J.