Opinion
2d Crim. No. B228215 Super. Ct. No. MA049336-01
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. HOWARD CHESTER WEAVER, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Howard Chester Weaver appeals from judgment entered after a jury convicted him on one count of assault with a deadly weapon (hedge trimmers); one count of assault with a deadly weapon (machete), with personal infliction of great bodily injury; and one count of mayhem, with personal use of a deadly weapon (a machete). (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a), 203, 12022, subd. (b)(1).) In a bifurcated proceeding, appellant admitted that he had served a prior prison term pursuant to section 667.5, subdivision (b) and suffered a prior serious felony within the meaning of sections 667, subdivisions (a)-(i) and 1170.12, subdivisions (a)-(e).
The court sentenced appellant to 22 years in state prison, consisting of an 8-year upper term for mayhem, doubled to 16 years for the strike, plus one year for use of a weapon and 5 years for the prior serious felony, and a concurrent 4 year upper term for the assault with the hedge trimmers. The court stayed the sentence for assault with the machete pursuant to Penal Code section 654.
Appellant filed a timely notice of appeal, and we appointed counsel to represent him. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, setting forth the facts of the case and requesting that we review the entire record. Appellant thereafter filed two supplemental briefs in which he asserts that his trial testimony was accurate and that the testimony of two witnesses against him was untrue. We agree with counsel's conclusion that there are no arguable issues. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant severely cut his stepson's hand during an argument in the garage. His stepson, Isaac Garcia, was 18 years old and they had a history of physical confrontations.
On the night that he cut Garcia's hand, appellant's wife called 911 for an ambulance. She told the 911 operator that appellant was "getting in [her] son's face," that her son put his hand on appellant's chest and told him to stay away, and that appellant then chased her son with a knife and "cut him up."
When deputies arrived, Garcia said that appellant threw a pair of hedge trimmers at him and then chased him with a machete. He said appellant brought the machete down toward his head and when he put his hand up to protect himself, appellant cut it. Garcia later had surgery to repair severed muscles and tendons in his hand.
When the deputies first arrived, they saw appellant jumping over a back fence and they stopped him. He told them that Garcia had punched his chest and that he picked up some hedge trimmers to protect himself. Garcia must have cut his hand on the trimmers. He also said that Garcia had threatened him with a police baton and a pit bull. Police found the hedge trimmers but did not find a machete. The dog was gone, but appellant's wife and other witnesses said that Garcia's dog had been present on a leash during the argument.
At the preliminary hearing, Garcia partially recanted. He said appellant did not bring the machete down toward his head, but that appellant swung it at him. He said he got cut when he put his hand up. He said he did not know whether appellant meant to cut him, appellant did not throw hedge trimmers at him, and he did not tell the truth to the deputies at his house. He said that his hand was recovering from surgery, but he still had some numbness. The court denied a motion to dismiss the mayhem count.
After the preliminary hearing, appellant made recorded calls to his wife from jail. He scolded her because she and Garcia had allowed deputies to serve them at home with subpoenas. She assured him that Garcia was, "not gonna press charges and he's gonna go along with whatever we been saying from the beginning." Appellant told her, "they can't force you to testify." He said that Garcia should tell everybody he does not want to file charges or take the stand, and that what Garcia "needs to say" is "I really don't know how it happened how I got the cut." His wife said that a probation officer called to ask whether Garcia would ever be able to use his hand again. Appellant responded, "now [Garcia's] got to say his hand's ok[ay]." He told his wife to tell Garcia and his brother to "[do] the right thing for me."
Garcia evaded service of a trial subpoena. After an evidentiary hearing, the court found that Garcia was unavailable despite diligent efforts. The court ordered that the prosecution would be permitted to use his preliminary hearing testimony, over defense objection.
Garcia appeared for trial the following day and testified. He said that his original statement to the deputies and his preliminary hearing testimony were false. He testified that there was no machete involved. He said that he was fighting appellant and appellant picked up the hedge trimmers, probably because he was scared. He said appellant was not trying to hurt him and that he cut himself on the hedge trimmers because he was "hard-headed" and he tried to grab them away from appellant.
Two of Garcia's teenage friends testified that they watched from the driveway through the open garage door. One saw appellant throw hedge trimmers at Garcia. They both saw him swing a machete at Garcia. One saw Garcia put his hand up to stop the machete and cut his hand.
Appellant's wife testified that she did not see Garcia get cut. She saw appellant with hedge trimmers, but she did not see him with a knife and she did not see him chase Garcia. She testified that Garcia had injured her husband many times during past arguments.
The court allowed the prosecutor to present, over defense objection, the 911 call, portions of the recorded jail calls to prove appellant's state of mind, and appellant's prior conviction for assaulting Garcia with a rock to prove state of mind and for impeachment. (Pen. Code, § 245, subd. (a)(1).) The court excluded evidence of appellant's prior felony drug related convictions and a conviction for child endangerment. (Health & Saf. Code, § 11350, Pen. Code, § 273a, subd. (a).)
Appellant testified that he did not cut Garcia with a machete and he did not know how Garcia got cut. He said that Garcia pushed and punched him in the garage, they struggled, and he picked up the hedge trimmers to protect himself. He said Garcia tried to grab the trimmers and then left the garage. Appellant threw the hedge trimmers down in frustration. Garcia returned with his dog. Appellant felt threatened, so he held up a long sharp masonry trowel. Then he and Garcia realized that Garcia was bleeding. He followed Garcia outside, trying to help. His wife called 911. He and his wife agreed it would be best if he left. He left over the back fence to avoid contact with the neighbors because he was embarrassed.
Appellant also described past confrontations with Garcia in which, he said, Garcia had pushed him, grabbed him, choked him, shoved him against a wall, stabbed him with a pencil, threatened him with scissors, and punched him in the face. Appellant is five feet, five inches tall and disabled. Garcia is six feet two inches tall. Appellant said he got a restraining order in 2010, when Garcia was 18, because Garcia had become too big to fight.
The court denied appellant's motion for acquittal. (Pen. Code, § 1118.1.) The jury convicted him of all counts.
DISCUSSION
Appellant contends that the evidence does not support his conviction because Garcia's trial testimony was accurate and the two testifying teenagers were untruthful. He asserts that they were not present until after Garcia was cut. He also submits letters from his family members stating their belief that he is innocent and that this was a family problem.
In reviewing a judgment for sufficiency of the evidence, we determine whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. (People v. Barnes (1986) 42 Cal.3d 284, 303.) In doing so, we must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) We must ensure that the evidence is reasonable in nature, credible, and of solid value, but it is the exclusive province of the jury to determine the credibility of witnesses because only the jury has the opportunity to observe their demeanor. (Ibid.) "Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness's credibility for that of the fact-finder." (Id. at pp. 303-304.)
We have fully reviewed the entire record and have considered appellant's contentions concerning Garcia's past attacks, appellant's own account of the events, and the testimony of the prosecution's witnesses. The record contains evidence that is reasonable in nature, credible and of solid value sufficient to support the verdict. We will not disturb the jury's assessment of the credibility of witnesses and the truth or falsity of the facts. (People v. Barnes, surpa, 42 Cal.3d at p. 303.) We are satisfied that appellant's counsel has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Christopher G. Estes, Judge
Superior Court County of Los Angeles
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.