P. v. Liao

Filed 7/20/06 P. v. Liao CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County and PETITION for Writ of Habeas Corpus. Robert M. Martinez, Judge. Judgment affirmed; separate order on petition.

Law Offices of Dennis A. Fischer, Dennis A. Fischer and John M. Bishop for Defendant, Appellant, and Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, and Scott A. Taryle, Deputy Attorney General, for Plaintiff and Respondent.

Yun Tseng Liao appeals from the judgment imposed following his conviction by jury of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664/187; undesignated section references are to that code), assault with a deadly weapon by means of force likely to inflict great bodily injury (§ 245, subd. (a)(1)), and infliction of traumatic injury upon a child (§ 273b, subd. (a)), each with findings that he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) and used a dangerous and deadly weapon (§ 12022, subd. (b)(1)). The three counts all arose from appellant's attack with a hammer upon 16-year-old Henry Chen. Appellant was acquitted of a fourth count, of attempted criminal threats (§§ 664/422) against Chen's mother, Chang Qun (Alice) Li.

Appellant was sentenced to life plus four years for the attempted murder, with sentences on the other counts stayed. On appeal, he contends that (1) there was insufficient evidence to establish the elements of intent to kill and of premeditation and deliberation on the attempted murder count; and (2) he was denied procedural due process, or effective assistance of counsel, because the court denied, or erroneously informed counsel it had denied, appellant's motion to obtain a polysomnogram, or sleep study, in aid of his principal claim that he was sleepwalking during the offenses. Appellant has also reiterated the second contention by petition for writ of habeas corpus, which we ordered considered concurrently with this appeal, and as to which we have directed and received an informal response from respondent, and a reply from appellant.

On appeal, we first hold that appellant's contention of insufficiency of evidence of the attempted murder lacks merit. With respect to the sleep study motion, we conclude that the record on appeal precludes asserting that it was denied, that appellant's claim he has been denied an adequate record on appeal is meritless, and that the further claims of lack of notice or ineffective assistance of counsel cannot be established on the appellate record. We therefore affirm the judgment. On the petition for habeas corpus, we will separately issue an order to show cause for evidentiary hearing and determination of certain of appellant's claims.

FACTS

Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed as follows.^[1] At about 4:00 a.m. on August 4, 2002, Henry Chen was awakened by the sensation of three blows on his head. They were struck by a household hammer, which Chen had left on the floor of his room. He covered his head with his hands, and in the dark sought his assailant, whom he pushed to the ground. Chen then saw that it was appellant, and he asked appellant what he was doing. Appellant did not reply. Chen ran into his mother Li's room, passing his younger brother Danny, and telling her appellant had hit him. She covered his head, and asked appellant to call the police. He stated he would go to jail, but after several requests he made the call. Li asked appellant why he had hit Chen. After repeating, â€