Filed 10/16/17 P. v. Portugal CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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Appointed counsel for defendant Daniel Portugal has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the record, we affirm the judgment.

Factual and Procedural Background

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On October 17, 2015, Jocelyn G. (counts 1-2) was at a quinceanera celebration with family members. At 10:30 p.m., Jocelyn was posing for a photograph with her four-year-old son and the band when defendant silently approached. Defendant made a slashing motion toward Fidel G. (count 3), one of the band members, who felt a flick on the side of his neck and realized he was bleeding. Fidel ran outside, called 911, and hid. Fidel was taken to the hospital by ambulance and received stitches for a four-inch cut to his neck and prophylactic HIV medication. Fidel still has a scar.

Meanwhile, defendant walked up to Jocelyn and punched her in the face. Although Jocelyn did not see a knife, she soon realized she was bleeding from her face and shoulder. Jocelyn was airlifted to the hospital, where she received stitches for cuts to her eyebrow, nose, and shoulder. As a result of her injuries, Jocelyn has scars, required hand therapy, and has permanent vision loss.

Daniel F. (count 4), another band member, testified he saw defendant attack Fidel and Jocelyn, so he tackled defendant to the floor. While Daniel was trying to restrain defendant, he realized defendant had a knife. Someone pulled Daniel away from defendant, and Daniel realized he was injured and bleeding from his leg and abdomen. Daniel was airlifted to the hospital, where he had surgery for his injuries. At the time of trial, Daniel suffered from pain, was unable to run, and had difficulty walking and lifting heavy weight.

Otilio A. (count 5) was working as a security guard during the party. Otilio saw defendant 20 minutes before the incident and thought he appeared under the influence, because his eyes were “bouncy, and he just seemed agitated.” When Otilio heard a disturbance, he rushed to help, but defendant stabbed him in the abdomen. Otilio’s injuries required surgery.

Jose M. (count 7), a guest at the party, also rushed to help. Jose tried to pull defendant off of one of the band members, but defendant got away. Ramon S. (count 6), Jose’s friend, tackled defendant, and Jose ran to help. During the commotion, defendant stabbed Jose in the leg and Ramon in the face and shoulder. Jose and Ramon both received stitches for their injuries.

Police arrived and found defendant on the ground, surrounded by a crowd. Police locked defendant inside the patrol car and returned to the party hall to help the victims. Defendant was taken to the hospital and treated for a broken nose, and then transported to the sheriff’s office. While defendant was in the hospital, Detective Charles Hoyt overheard defendant ask, “did anyone die?” Hoyt advised defendant of his rights and questioned him. Later, at the sheriff’s office, defendant was again advised of his rights and questioned further. Defendant told police there had been a fight, and he tried to stop it by pulling people off. Defendant denied seeing or touching a knife, although he later claimed he was stabbed or someone attempted to stab him during the incident. Hoyt testified he conducted photo lineups with Ramon, Jose, and Otilio, and they all identified defendant.

Detective Hoyt observed that defendant did not appear to be under the influence of any intoxicants. A subsequent lab analysis confirmed the presence of marijuana, amphetamine, and methamphetamine in defendant’s blood. The jury heard testimony from a forensic toxicologist that methamphetamine is a central nervous system stimulant and can cause prolonged wakefulness, aggression, paranoia, and an increased heart rate. In high doses, methamphetamine can lead to a psychotic break.

Defendant was charged with maiming or disfiguring Jocelyn G. (Pen. Code, § 203; count 1)[1] and six counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2-7). With respect to count 1, it was further alleged that defendant used a deadly weapon. (§ 12022, subd. (b)(1).) With respect to counts 2 through 7, it was further alleged that defendant personally inflicted great bodily injury. (§ 12022.7, subd. (a).)

During jury deliberations, the jurors asked whether there was “a legal definition/term more severe than ‘great’ bodily injury?” The trial court responded that the question was unclear and “s[ought] to elicit an answer that is not relevant to this case.” The jury subsequently informed the trial court that it was unable to reach a verdict as to the great bodily injury enhancements to counts 4, 6, and 7, and there was no reasonable possibility it could do so with further deliberation. The trial court declared a mistrial as to those allegations, and the prosecution ultimately elected not to retry the enhancements.

On April 15, 2016, the jury convicted defendant of counts 1 through 7. The jury also found true the deadly weapon enhancement as to count 1, and the great bodily injury allegations as to counts 2, 3, and 5.

During the June 2, 2016 sentencing hearing, the trial court heard from Matthew Soulier, a child and adult forensic psychiatrist. Dr. Soulier testified methamphetamine is a stimulatory and can induce mania, psychosis, agitation, and aggression. An individual suffering from methamphetamine-induced psychosis could have reduced impulse control. Dr. Soulier concluded defendant was suffering from methamphetamine-induced psychosis at the time of the incident, although he still knew right from wrong.

The trial court sentenced defendant to 16 years in state prison, as follows: eight years for count 1 plus one year for the deadly weapon enhancement, four years for count 2 plus three years for the great bodily injury enhancement, stayed pursuant to section 654, one year (one-third the midterm) each for counts 3 through 7 (totaling five years), plus one year (one-third the midterm) for each great bodily injury enhancement (totaling three years). The court recommended defendant be allowed to participate in substance abuse counseling while in prison. The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a corresponding $300 parole revocation fine suspended unless parole is revoked (§ 1202.45), and a $30 collection fee (§ 1202.4, subd. (l)). In addition, the trial court imposed $180 in criminal conviction assessment fees (Gov. Code, § 70373) and $240 in court security fees (§ 1465.8, subd. (a)(1)). The trial court awarded 264 days’ credit and ordered $16,456.92 in victim restitution (§ 1202.4, subd. (f)).

discussion

Appointed counsel filed an opening brief that sets forth the facts of the case and asks us to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Counsel advised defendant 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.

Although during sentencing the trial court orally imposed four years in state prison for count 2 and three years for the great bodily injury enhancement, stayed pursuant to section 654, the abstract of judgment fails to list the time imposed. We shall order the trial court to correct this omission.

We have undertaken an examination of the entire record and find no arguable error that would result in a disposition more favorable to defendant.

disposition

The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

HULL , J.

We concur:

NICHOLSON , Acting P. J.

ROBIE , J.