P. v. Brians
Filed 1/29/13 P. v. Brians CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SAMUEL BRIANS,
Defendant and Appellant.
D061845
(Super. Ct.
No. SCS234284)
APPEAL from
a judgment of the Superior Court
of
County, Ana L. Espana, Judge.
Affirmed.
A jury
convicted Samuel Brians of attempted murder (Pen. Code, §§ 666/187, subd. (a)),
battery with serious bodily injury
(id., § 243, subd. (d)),
mayhem (id., § 203), assault with a
firearm (id., § 245, subd. (a)(2)),
two counts of unlawfully taking and driving a vehicle (Veh. Code, §10851, subd.
(a)), and two counts of receiving a
stolen vehicle (Pen. Code, § 496, subd. (d)).
In connection with the attempted murder count, the jury found Brians
intentionally and personally discharged a firearm and proximately caused great
bodily injury to the victim (Pen. Code, § 12022.53, subd. (d)), personally
inflicted great bodily injury upon the victim (id., § 12022.7, subd. (a)), and intentionally and personally
discharged a firearm (id., § 12022.5,
subd. (a)).
title="">[2] The jury also sustained allegations that
Brians intentionally and personally discharged a firearm (id., § 12022.5, subd. (a)) in connection with the attempted murder
and assault with a firearm counts.
The trial
court sentenced Brians to a determinate term of 10 years four months. The court also imposed a consecutive
indeterminate sentence of 25 years to life for the Penal Code section 12022.53,
subdivision (d) allegation attached to the attempted murder count.
FACTS
On November
29, 2009, at 10:14 p.m.,
Brians called 911 and reported he had just shot his girlfriend, Kristin
Bautista, in the face. Brians said they
had been arguing. When first responders
arrived at Bautista's apartment in Imperial Beach,
Brians was not there. Bautista was
slumped over on the couch and was barely breathing; she had a gunshot wound to
her right eye.
Bautista
was taken to the University of California,
San Diego Medical
Center, where she had a portion of
her skull removed and replaced with a skull cap because of bleeding in the
brain. Her right eye could not be saved
and was removed. Bautista also required a
breathing tube (tracheotomy) and a feeding tube. As of February 2012, when the trial took
place, Bautista was in a long-term care facility at Sharp
Hospital in Coronado. Her treating physician testified that she
continued to have a tracheotomy to continue breathing and may require it for
rest of her life. The physician also opined
that she will require 24-hour care for the rest of her life. Bautista cannot walk and is unable to move
the left side of her body. Bautista, who
has to eat a pureed type of diet because of the risk of aspiration, needs to
have a person feed her. The physician
said Bautista's feeding tube remained in place because she does not take in
enough calories to sustain life without it.
Bautista is able to talk, but her cognitive ability is limited.
DISCUSSION
Appointed appellate counsel
has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal,
but asks that this court review the record for error as mandated by
v. Wende (1979) 25 Cal.3d 436.
Counsel has not referred us to any possible, but not arguable issues
pursuant to Anders v. California
(1967) 386 U.S. 738.
We granted Brians permission to file
a brief on his own behalf. He has not
responded.
A review of the record pursuant to
v. California, supra, 386 U.S.
738 has disclosed no reasonably arguable appellate issues. Competent counsel has represented Brians on
this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
name="_ftn1" title="">[1] The jury found Brians guilty of battery with serious bodily
injury as a lesser included offense of aggravated mayhem.
name="_ftn2" title="">[2] In connection with the mayhem count, the jury also found
Brians intentionally and personally discharged a firearm and proximately caused
great bodily injury to the victim with the meaning of Penal Code section
12022.53, subdivision (d).
