Filed 8/11/17 P. v. Napier CA5









NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS PAUL NAPIER,

Defendant and Appellant.


F073324

(Super. Ct. No. F15903610)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant Dennis Paul Napier of battery with serious bodily injury (Pen. Code, § 243, subd. (d)/count 1) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)/count 2) and found true a great bodily injury enhancement in each count (§ 12022.7, subd. (a)). In a separate proceeding, the jury found true a serious felony enhancement (§ 667, subd. (a)(1)) and allegations that Napier had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)).
Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2015, Napier and Ronald Tinsley shared a room for approximately a month at the Veterans Board and Care Home in Fresno, California. Tinsley suffered from chronic asthma and used a 12-inch pedestal fan at night that made it easier for him to breathe. He would plug the fan into an outlet with two sockets that was located by the foot of his bed.
On June 9, 2015, at approximately 3:30 a.m., Tinsley woke up to some banging in the room and found the lights on and that Napier was waking up. Napier got out of bed and sprayed something that caused Tinsley to have trouble breathing, so Tinsley got his inhalers and went into the living room to wait for the air to clear. When he walked back into the room, Napier was lying in bed. Tinsley soon discovered that Napier had unplugged Tinsley’s fan and connected a night light to one socket and a large fan to the other socket, which Napier positioned facing his own bed.
Tinsley went over to the outlet to unplug the night light so he could plug his fan back in. As Tinsley bent over, Napier told him not to plug in his fan. Tinsley responded that they needed to talk about that in the morning because he could not breathe without the fan. Tinsley plugged in his fan. As he stood up and started turning around, Napier hit him on his left eye. Tinsley hit a wall and spun around and Napier hit him on the right eye and then again on the left side of his face. Tinsley fell to the ground unconscious, bleeding from his eyes, nose, and mouth. When he regained consciousness, Napier was opening Tinsley’s right eye and shining a flashlight into it. Tinsley got up, went to the home manager’s room, and reported that Napier had “jumped” him.
Napier was arrested that night and claimed that he acted in self-defense. Officers who responded observed that Napier’s knuckles were red but otherwise did not observe any injuries on him.
Tinsley was taken to the emergency room that night with a cut over his right eye, two black eyes, and swelling on the left side of his face. He also sustained three fractures around his left eye that required surgery.
On June 30, 2015, the Fresno County District Attorney filed an information charging Napier with the offenses of which he was convicted and the enhancements and allegations that were found true.
On September 10, 2015, the jury found Napier guilty on the two counts in the information and it found true the great bodily injury enhancements and the allegation that Napier had a prior assault conviction. Afterwards, the court found that the assault conviction was a serious felony for purposes of the serious felony enhancement and the Three Strikes allegation.
On February 25, 2016, the court struck Napier’s prior strike conviction and sentenced him to an aggregate 12-year term, the aggravated term of four years on his assault conviction, a three-year great bodily injury enhancement, a five-year serious felony enhancement, and a stayed term on his battery conviction and the great bodily injury enhancement attached to that count. The court also dismissed an unrelated misdemeanor case.
Napier’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a document that was received on October 24, 2016, Napier lists 87 sequentially numbered claims that allegedly arose during the prosecution of his case that he contends prejudiced him. We summarily reject the first 86 contentions because Napier does not advance any argument or authority to support them. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [appellant’s contentions are waived if they are not supported by meaningful argument or citations to authority].) Additionally, many of Napier’s claims of prejudice are not cognizable on appeal because they rely on facts outside the appellate record. (People v. Barnett (1998) 17 Cal.4th 1044, 1183.) In claim No. 87, Napier contends he was prejudiced by Judge Arlan Harrell’s denial of his motion to disqualify pursuant to Code of Civil Procedure section 170.6, which Napier made on the afternoon of September 3, 2015, the first day of trial. Although Napier provides one citation in support of this claim, the denial of that motion is not cognizable in the instant appeal because “[a]n order denying a peremptory challenge is not an appealable order and may be reviewed only by way of a petition for writ of mandate.” (Daniel V. v. Superior Court (2006) 139 Cal.App.4th 28, 39.)
Further, following independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.