People v. Aguirre CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD252492
- Trial judge
- Eugenia Eyherabide
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- O'Rourke (author), Richard D. Huffman, Sr., Patricia D. Benke
Analysis
The trial court convicted Rene Javier Aguirre of assault by means likely to produce great bodily injury and battery with serious bodily injury, imposing a sentence of three years' probation with 365 days in local custody and a waiver of presentence credits. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for assault by means likely to produce great bodily injury (Counts 1 and 2) and battery with serious bodily injury (Count 3), including findings of personal infliction of great bodily injury.“A jury convicted Rene Javier Aguirre of assault by means likely to produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4); counts 1 and 2) and battery with serious bodily injury (§ 243, subd. (d); count 3).” | de novo | not reached | unsure The appellate court did not explicitly analyze the sufficiency of the evidence or the legal validity of the convictions in the text, but stated it reviewed the entire record and found no reasonably arguable issues for reversal. The court affirmed the judgment, implying the convictions were supported by the record. |
Imposition of probation conditioned on 365 days in local custody and waiver of section 4019 presentence credits.“The court stayed Aguirre's sentence and imposed a term of three years probation on condition he spend 365 days in local custody and waive section 4019 presentence credits.” | abuse of discretion | not reached | unsure The appellate court listed the sentencing issue as one of the points raised by counsel but did not provide specific reasoning in the opinion text, stating only that it reviewed the record and found no reasonably arguable issues. The affirmation suggests the court found no abuse of discretion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appellate counsel to review the record for error when no issues are identified, and the court to conduct an independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potentially arguable issues when no meritorious issues are found.
The appellate opinion: sound with gaps — The opinion is a standard Wende/Anders review where the court states it reviewed the entire record and found no reasonably arguable issues. It does not provide specific legal analysis for the issues raised by counsel, relying instead on the summary statement of no error.
How this analysis was made · dispute it
unusual dispositionA San Diego jury convicted Rene Javier Aguirre of two counts of assault by means likely to produce great bodily injury and one count of battery with serious bodily injury, with great bodily injury findings, and the trial court stayed sentence and placed him on three years' probation conditioned on 365 days in local custody and a waiver of section 4019 credits. On a Wende/Anders appeal in which counsel identified five possible issues and Aguirre filed no supplemental brief, the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment of conviction and grant of probation (independent Wende/Anders review of the entire record)“We have reviewed the entire record consistent with the mandate of Wende, supra,” | unclear | correct | agree with court The court followed the Wende/Anders procedure: counsel filed a no-issue brief identifying possible issues, the defendant was invited to file a supplemental brief and did not, and the court states it reviewed the entire record and found no arguable issue. The opinion recites the facts and counsel's suggested issues, which is what Wende review requires; nothing in the recited record suggests an overlooked arguable error. |
Entry of conviction on count 2 (assault by means likely to produce GBI) alongside count 3 (battery with serious bodily injury) rather than striking count 2 as a lesser included offense“1. Should Aguirre's count 2 conviction be stricken as a lesser included offense of” | de novo | correct | agree with court Under the statutory elements test governing multiple convictions, assault by means likely to produce great bodily injury requires force of a kind likely to cause such injury, while battery with serious bodily injury requires only a battery that in fact causes serious injury; a battery with modest force can produce serious injury, so count 2 is not necessarily included in count 3. The court did not expressly discuss this but its finding of no arguable issue is consistent with that analysis; the opinion contains no analysis to check, so some uncertainty remains. |
Sufficiency of the evidence for the count 3 conviction, the rejection of self-defense, and the finding Aguirre personally inflicted great bodily injury on Farutdinov“Farutdinov in the face and, as a result, Farutdinov was taken to the hospital, where he” | substantial evidence | correct | agree with court The recited testimony shows Aguirre slapped Bissenkulov, removed his shirt and fought, and punched Farutdinov in the face, causing a lip wound requiring about seven stitches and weeks of headaches and nausea. A rational jury could find a battery causing serious bodily injury, personal infliction of great bodily injury, and that Aguirre was the initial aggressor rather than acting in self-defense, so the implicit conclusion that no arguable sufficiency issue exists is supported. |
Probation condition requiring 365 days local custody and waiver of section 4019 presentence credits, and refusal to limit custody to time served“4. Did the court abuse its discretion by requiring Aguirre to waive his section” | abuse of discretion | correct | agree with court A knowing and voluntary waiver of presentence conduct credits as a condition of probation is a recognized, permissible sentencing choice, and the length of local custody within a probationary grant is a discretionary call reviewed deferentially. The opinion does not describe the waiver colloquy, so the record presented is thin, but nothing recited suggests the waiver was involuntary or the custody term outside the court's discretion. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The opinion follows the standard Wende/Anders procedure, recites the facts and counsel's suggested issues, confirms the defendant was invited to file his own brief, and states that independent review of the record disclosed no arguable issue. Because Wende opinions by design contain no analysis of the individual issues, the result is defensible but the reasoning cannot be independently verified from the opinion alone.
How this analysis was made · dispute it
record incompleteOpinion
Filed 2/11/16 P. v. Aguirre CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067548
Plaintiff and Respondent, v. (Super. Ct. No. SCD252492)
RENE JAVIER AGUIRRE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, for Plaintiff and Respondent.
A jury convicted Rene Javier Aguirre of assault by means likely to produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4); counts 1 and 2) and battery with serious bodily injury (§ 243, subd. (d); count 3). It found true that as to count 2, Aguirre 1 Statutory references are to the Penal Code. personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) and as to counts 2 and 3, he personally inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8). The court stayed Aguirre's sentence and imposed a term of three years probation on condition he spend 365 days in local custody and waive section 4019 presentence credits. Aguirre appeals under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We offered Aguirre the opportunity to file his own brief on appeal but he has not responded.
FACTUAL BACKGROUND
Jaime Lopez testified that on November 23, 2013, he and Aguirre were having a friendly chat at a downtown San Diego bar. Aguirre asked him where he was from, and Lopez replied he was from National City. Aguirre said he was from the neighboring area called Shelltown in San Diego and, unprovoked, hit Lopez, who lost consciousness.
Afterwards, as Aguirre walked past a nightclub, he slapped Shaken Bissenkulov, who was standing outside. Bissenkulov testified that he and his friend, Ruslan Farutdinov, followed Aguirre, who took off his shirt and fought them. Aguirre punched Farutdinov in the face and, as a result, Farutdinov was taken to the hospital, where he received approximately seven stitches to his lips. For a couple of weeks afterwards Farutdinov suffered from headaches and nausea.
2 DISCUSSION
Appellate counsel states she is unable to identify any reasonably arguable issues for appeal and has asked this court to review the record for error. (Wende, supra, 25 Cal.3d 436.) Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the following issues in order to assist the court in its search for error:
1. Should Aguirre's count 2 conviction be stricken as a lesser included offense of his count 3 conviction?
2. Did substantial evidence support the count 3 conviction and the finding Aguirre did not act in self-defense?
3. Did sufficient evidence support the finding Aguirre personally inflicted great bodily injury on Farutdinov?
4. Did the court abuse its discretion by requiring Aguirre to waive his section 4019 credits to receive probation and in refusing to limit his custody time to time served?
5. Should Aguirre's enhancement for personally inflicting great bodily injury be stricken under section 654?
We have reviewed the entire record consistent with the mandate of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any reasonably arguable issues for reversal on appeal. Aguirre has been represented by competent counsel on this appeal.
3 DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12