P. v. Fryman

Filed 1/30/07 P. v. Fryman 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

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A jury convicted defendant Danielle Fryman of assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)) with infliction of great bodily injury (Pen. Code,  12022.7, subd. (a)). The court sentenced defendant to state prison for five years -- the low term of two years for the assault enhanced by three years for the great bodily injury.

Defendant appealed and an opening brief was filed on her behalf by appointed counsel. Counsel argued that remand for resentencing was required because the trial court failed to understand that it had discretion to strike the great bodily injury enhancement in the interests of justice. While the appeal was pending, the court recalled defendants sentence (Pen. Code,  1170, subd. (d)) and granted her probation. Appointed counsel, thereafter, moved to strike her opening brief as moot and to file a brief pursuant to People v Wende (1979) 25 Cal.3d 436 (Wende). The motion was granted and counsel filed a Wende brief.

FACTS

There had been bad blood between defendant and the victim, Jacqueline Nash, because of an incident at a local club. On February 22, 2004, Nash drove by defendants residence on her way home, which was about half of a mile away from Nashs home. Defendant, defendants mother, and another person followed Nash to her home in a vehicle driven by defendant. When Nash stopped in front of her house, her passenger ran inside the house to get help from Nashs in-laws. As Nash got out of her car, defendant approached and the two started fighting. Defendants mother joined in, grabbing Nashs hair. Nash fell and saw defendant pull a knife and make a downward motion with it.

Nash was able to run into the house where she discovered a gash in her head and half [her] hair . . . gone. Displeased, Nash obtained a baseball bat and went back outside and attempted to hit defendants mother, but instead struck defendants car. The fight was eventually stopped and Nash went to the hospital where she spent two weeks.

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. (Wende, supra, 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 elapsed, and we 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.

CANTIL-SAKAUYE , J.

We concur:

SIMS , Acting P.J.

BUTZ_ , J.

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