P. v. Saenthavysouk

Filed 10/12/07 P. v. Saenthavysouk CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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Sa Dang Saenthavysouk (Sa Dang) lived with Dennis Samuelson in a Chico apartment that belonged to Samuelson. Defendant Veopasert Laoi Saenthavysouk, Sa Dangs brother, had no place to live so Samuelson allowed defendant to live in the apartment as well for a short time. Defendant overstayed his welcome. On March 25, 2006, defendant refused to leave when Samuelson asked him to do so, telling Samuelson he could whip [his] ass. Samuelson called Chris Johnston, the boyfriend of Samuelsons mother, to help evict defendant. Johnston stood 6 feet 3 inches tall and weighed about 230 pounds. When Johnston arrived 10 minutes later at the apartment, Samuelson, Sa Dang, defendant, and Jason Bay were all present. Johnston asked defendant to leave the apartment. Defendant left the room, carrying a Corona bottle of beer and mumbling. He said he would call someone and went into a back bedroom. He returned a few minutes later, carrying his bottle of beer and swinging his arms back and forth. He stood by Johnston. Johnston was watching the television. Johnston saw from the corner of his eye that defendant had moved behind Johnston. When Johnston turned toward defendant, defendant hit Johnston very hard on his forehead with the bottle defendant had been holding. Johnston was incapacitated for a few seconds and fell toward the floor. When he was able to focus, Sa Dang punched him in the jaw and face a few times. Scared and believing it to be his best defense, Johnston got up, shook hands with Sa Dang, telling him he had a hard punch, and picked up defendants hat and handed it to him. Johnston denied fighting back. Johnston sustained a cut on his forehead that went to the bone, an inch from his right eye, which required 14 stitches. Johnston found the bottom portion of a broken beer bottle on the floor and the neck of the bottle under the hat he had been wearing. Samuelson, Bay, Sa Dang, and defendant all testified at trial. Bay and Samuelson heard the bottle smash against something. When Samuelson turned to look, he saw Johnston elbow defendant, defendant hit Johnston in the jaw and Sa Dang hit Johnston in the forehead. Sa Dang and defendant testified that defendant acted in self-defense. Defendant denied hitting Johnston with the bottle.

A jury convicted defendant of assault with a deadly weapon, to wit, a bottle. (Pen. Code,  245, subd. (a)(1).) In bifurcated proceedings, the court found a strike prior (Pen. Code, 667, subds. (b)-(i), 1170.12) and a prior serious felony (Pen. Code, 667, subd. (a)(1)) to be true.

The court sentenced defendant to state prison for an aggregate term of 11 years, that is, the midterm of three years for the assault offense, doubled for the strike prior, plus a five-year enhancement for the prior felony.

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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