Filed 5/9/18 P. v. Buckley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS WAYNE BUCKLEY,

Defendant and Appellant.


E068531

(Super.Ct.No. FSB17000537)

OPINION


APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On April 6, 2017, an information charged defendant and appellant Dennis Wayne Buckley with attempted murder under Penal Code sections 664 and 187, subdivision (a) (count 1); and assault with a deadly weapon, a knife under Penal Code section 245, subdivision (a)(1) (count 2). The information also alleged that in the commission of counts 1 and 2, defendant inflicted great bodily injury under Penal Code section 12022.7, subdivision (a). The information further alleged that defendant had served two prior prison terms under Penal Code section 667.5, subdivision (b).
On April 14, 2017, a jury found defendant not guilty of count 1, and guilty of count 2. In addition, the jury found true the great bodily injury allegation. Defendant waived his right to a jury trial on the prior conviction allegations; the trial court found the two prior convictions true.
On May 19, 2017, the trial imposed the midterm of three years on count 2, three years for the great-bodily injury allegation, and one year on each of the two prison priors for an aggregate sentence of eight years in prison. The court awarded credit for 215 days in custody, 187 actual days plus 28 good time/work time.
On June 8, 2017, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY
1. PROSECUTION
On November 16, 2016, Michael Schmidt was living in a house in Yucaipa with his girlfriend Leah Stewart. Mark Michael and his wife also lived there; they rented a room in the house. At 10:00 p.m., Schmidt, who was asleep in bed, was awakened by the sound of his truck, a white Ford Expedition, driving up to the house. While Schmidt was asleep Stewart had taken his keys from the drawer and driven away. Schmidt wanted the keys back so he went outside to talk to Stewart. Stewart was in the back passenger seat so Schmidt got into the driver’s seat. The keys were not in the ignition, they were in Stewart’s purse. He asked Stewart to give the keys to him but she refused. After a brief argument, they got out of the car and moved to the grass in the front yard. Schmidt grabbed Stewart’s purse; they had a back and forth tug-of-war for control of the purse.
Defendant, who was Stewart’s ex-boyfriend, parked his green Chrysler in front of the house at the end of the driveway. Schmidt told defendant to stay in the car and not to set foot on Schmidt’s property. Defendant ignored the order to stay in the car but did not immediately come onto the property. Defendant stood by while Schmidt and Stewart continued to argue and struggle for control of her purse. Schmidt testified that he was trying to take Stewart’s purse in order to take his keys. Stewart had the purse strap over her shoulder or across her body. When Schmidt pulled on the purse, Schmidt was pulled along with it. She pushed Schmidt in an effort to get him off her and to get the purse away from him. While Schmidt and Stewart were engaged in this struggle, defendant approached Schmidt and flashed a large Bowie knife in front of Schmidt’s face. Schmidt pushed Stewart away. Defendant stabbed Schmidt in the back just below the left shoulder blade; Schmidt fell to the ground. One of Schmidt’s lungs was punctured.
While Schmidt was on the ground, defendant kicked Schmidt and told him to stand up. Schmidt could not stand up. He was in pain and having difficulty breathing. Michael came out of the house and intervened; he was already on the phone calling 911. Michael told them defendant had left. An ambulance came and Schmidt was treated on the lawn. He remembers getting into the ambulance for transportation to the hospital but after that was a blur. He underwent surgery, including having tubes placed in his lungs. Schmidt was admitted to the hospital for five or six days.
Schmidt knew defendant was Stewart’s ex-boyfriend, but he befriended defendant because he trusted defendant and Stewart. However, defendant came to the house all the time and Schmidt didn’t like it. Schmidt admitted that on at least two prior occasions, he had pulled out a knife in defendant’s presence. He did it because defendant, who was on Schmidt’s property, was threatening him. Defendant was lunging at Schmidt both times.
At 10:30 p.m., San Bernardino County Deputy Sheriff Greg Hanrahan responded to a domestic disturbance call at Schmidt’s house. Hanrahan approached Schmidt; he was standing next to the front door. When Hanrahan asked what had happened, Schmidt told him that he had just been stabbed by defendant. Hanrahan asked Schmidt what kind of car defendant drove and Schmidt said it was a green Chrysler. Other officers arrived so Hanrahan left to look for defendant. Hanrahan located the green Chrysler with defendant sitting in the driver’s seat about a block from Schmidt’s house. Approaching the car, Hanrahan initially could not see the driver because the seat was reclined all the way back. As he drew closer, Hanrahan saw defendant in the reclined position. His upper body was covered with a blanket and an empty knife sheath was on top of the blanket. Hanrahan told defendant to exit the vehicle; he placed defendant in the back seat of his patrol car. Hanrahan searched the Chrysler and found a large Bowie knife on the floor behind the driver’s seat.
Deputy Sheriff Erik Urban responded to Schmidt’s residence about 10:30 p.m. . When Urban interviewed Schmidt, he stated that defendant stabbed him and left in a green Chrysler. Stewart stated that defendant stabbed Schmidt while she and Schmidt were arguing in the front yard; Schmidt was grabbing her arms and purse to get her purse. Stewart did not say that Schmidt pulled out a knife during their struggle. Urban did not notice any knives or weapons on Schmidt or in the front yard.
Deputy Urban and Sergeant Dan Whitten interviewed defendant at the Yucaipa station. Defendant was advised of his Miranda rights; he agreed to talk to the officers. Defendant said that he arrived at Schmidt’s house and saw Schmidt choking and hitting Stewart. He told Schmidt to leave her alone and Schmidt stopped so defendant left. Defendant did not know what happened after he left. When Urban asked defendant how Schmidt got a big hole in his back from being stabbed, defendant denied knowing anything about it. Defendant said that he did not take his Bowie knife out of his car. He said, “I was defending her, but I didn’t, you know, man. Dude I didn’t stab the guy.” Defendant said that on a previous occasion, Schmidt rushed defendant with a knife. Defendant said that Schmidt probably had a knife that night but did not know for sure. When he told Schmidt to leave Stewart alone, they stopped fighting and Stewart got into defendant’s car. Defendant told her to get out; Stewart got out and went into the house. Defendant drove down the road.
Yucaipa Police Detective Kevin Allen was assigned to do follow-up investigation. He interviewed Stewart the next day. Stewart told Allen Schmidt pushed and punched her. She said she did not have any injuries and the officer did not see any. Stewart told Allen that Schmidt pulled a knife on defendant first. She was unable to describe the knife but said that Schmidt kept a knife in his bedroom. She showed the officer a camping knife with a six- to 10-inch blade under the bed in their bedroom. She did not mention that Schmidt had a folding knife.
The recording from a jail call defendant placed to Stewart was played for the jury. Defendant talked briefly with Stewart, who then gave the phone to Schmidt. Defendant told Schmidt to tell the police it was self-defense. That if he was going to court, Stewart needed to testify as a witness and Schmidt needed to go and say it was an accident. Schmidt told defendant that the whole thing only happened because defendant punctured Schmidt’s lung. Defendant apologized to Schmidt.
2. DEFENSE
Stewart testified that Schmidt allowed her to use his Expedition on a regular basis. On November 13, 2016, before sunrise, she left in the Expedition. When she returned home mid-afternoon, Schmidt was angry. Schmidt screamed obscenities at her in front of their son; he was foaming at the mouth. Stewart threw the keys across the street toward the apartments but told Schmidt that they were in the house. When he went inside, Stewart drove away again in the Expedition.
That evening, when Stewart returned home again, she asked defendant to follow her home because she was afraid that Schmidt would be angry again. When she had exited the truck, Schmidt came outside and grabbed her purse to take the keys. Her purse had a shoulder strap that she was wearing across her chest. Schmidt grabbed the purse and jerked Stewart around. Stewart was trying to get away; Schmidt touched her body but he did not hit her. The struggle ended when defendant pulled up to the house and yelled at Schmidt to calm down. Stewart did not know whether she had seen anyone with a knife; although she may have told Detective Allen that Schmidt had pulled out a knife, she really was not sure because she had seen Schmidt do it “countless” times.”
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to represent him. On January 18, 2018, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record. After the appellate record was augmented, on March 7, 2018, counsel filed a supplemental brief providing a summary of the factual basis for the guilty plea in Case Number FSB1600152.
We offered defendant an opportunity to file a personal supplemental brief on two occasions, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


RAMIREZ
P. J.


McKINSTER
J.