P. v. Long
Filed 6/22/12 P. v. Long CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY MICHAEL LONG et al.,
Defendants and Appellants.
D060405
(Super. Ct.
No. SCE299206)
APPEALS
from judgments of the Superior Court
of San Diego
County, John M. Thompson, Judge. Affirmed.
Anthony
Michael Long, Jesse James Preston and Bryant Stephan Johnson (the defendants)
entered negotiated guilty pleas to mayhem
(Pen. Code, § 203; count 2, victim Michael Bajko; all statutory references
are to the Penal Code) and five counts of assault with a deadly weapon by force
likely to cause great bodily injury (§ 245, subd. (a)(1); count 3, victim
Bajko; counts 5 and 7, victim Eric Taylor; counts 6 and 8, victim Scott
McPhail). The court sentenced Long and
Preston to eight years in prison: the
eight-year upper term for mayhem, four concurrent three-year middle terms for
assault and a stayed term (§ 654) for the assault in count 3. The court sentenced Johnson to 11 years in
prison: the eight-year upper term for
mayhem; three consecutive one-year terms (one-third the middle term) for the
assaults in counts 5, 6 and 7; a concurrent three-year middle term for the
assault in count 8; and a stayed term (§ 654) for the assault in count
3. The defendants appeal. We affirm.
BACKGROUND
On the
evening of March 5, 2010,
Johnson and Taylor argued and threatened each other, largely through
intermediary Amanda Porter. Taylor
called Johnson a derogatory name, and Johnson challenged Taylor
to a fight. They agreed to meet at a
park.
Taylor,
McPhail and Bajko drove to the park and arrived early in the morning of March 6, 2010. They did not have any weapons, although there
was a tire iron in the back of their car.
About five minutes later, the defendants arrived in vehicles driven by
Porter and another person. Long had a
bat and either Johnson or Preston had a club or
bat. The defendants ran toward Taylor
and McPhail. Long swung at McPhail. Taylor and McPhail ran. A chase ensued.
Taylor and
McPhail stopped running when they realized they were no longer being
pursued. Meanwhile, Bajko, with his
hands in the air, was under attack. The
defendants were striking him with a bat and a golf club, swinging the weapons up
over their heads and then straight down.
Bajko fell to the ground and lay there, limp, with his hands at his
sides, as the defendants repeatedly struck him in the face, head and chest with
the bat, kicked him in the side and struck him in the side with a weapon. Preston stomped on
Bajko's head. Johnson stomped on Bajko's
head, hard, at least five times.
Taylor
ran to his car, grabbed the tire iron and ran to assist Bajko. Someone struck Taylor
in the face with a bat. Taylor
fell to the ground but got back up. As
the bat came at him again, Taylor
stumbled and fell. As he lay on the
ground, another individual kicked him in the side and punched him. Taylor
felt something strike his arm.
McPhail
also came to Bajko's aid. McPhail
punched one of Bajko's assailants in the back of the head as the assailant was
holding a bat above Bajko's head, ready to strike him in the face again. Someone struck McPhail in the head with a
golf club. McPhail fell to the ground,
and someone kicked him in the face.
McPhail stood up, and someone struck him in the ribs with a bat. McPhail again fell to the ground, where he
saw the tire iron. He picked it up and
put it behind his back. One of Bajko's
assailants swung at McPhail with his fist.
When McPhail brought the tire iron from behind his back, the assailant
turned around and ran, stopped at Bajko and stomped on his face twice. McPhail hit someone in the head with the tire
iron as that person was about to strike Taylor, who was lying on the
ground.
The
defendants left, and McPhail called 911.
The police arrived at the park shortly before 2:00 a.m. on March
6, 2010, as paramedics were treating Bajko, Taylor and
McPhail. Bajko was unconscious, his eyes
were swollen shut and he was covered in blood.
Taylor had a laceration on
his forearm. McPhail complained of pain
on the left side of his head and the left side of his torso. Officers found a tire iron and the broken
shaft of a golf club near the victims.
The
laceration on Taylor's forearm
required five internal and five external sutures, and caused a scar. McPhail was treated for a concussion and
bruised ribs. Bajko sustained life-threatening injuries, loss of brain
tissue and memory loss. His injuries
included multiple skull and facial fractures and lacerations. Bajko underwent several surgeries. He had titanium plates placed in his face and
skull, resulting in scars and facial abnormalities. He required a tracheotomy, resulting in
another scar, and had an artificial sinus implanted. His crushed teeth required extensive dental
work. As a result of his injuries, Bajko
was sensitive to light, could no longer taste or smell, could no longer play
sports and suffered from headaches and high blood pressure.
Johnson
admitted he "beat up the big one pretty bad." Johnson told Porter, who witnessed the
attack, to lie to the police. Preston
admitted he had "[cracked]" Bajko with a bat.
DISCUSSION
Appointed
appellate counsel for the defendants have filed briefs summarizing the facts
and proceedings below. Counsel present
no arguments for reversal, but ask this court to review the record for error as
mandated by People v. Wende (1979) 25 Cal.3d 436
(Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), Long's counsel lists as a possible, but not arguable,
issue: whether the court erred in
imposing the upper term; and Preston's counsel lists as a possible, but not
arguable, issue: whether the court
abused its discretion in imposing the upper term. Pursuant to Anders, Johnson's counsel lists as possible, but not arguable,
issues: (1) whether the court abused its
discretion in imposing the upper term with consecutive sentences for three of
the assaults; (2) whether the case should be remanded for resentencing due to
the court's failure to state reasons for imposing consecutive sentences; and
(3) whether the case should be remanded for resentencing due to the ineffective
assistance of counsel at sentencing.
We granted
the defendants permission to file briefs on their own behalf. They have not responded. A review of the record pursuant to
arguable appellate issues. The
defendants have been competently represented by counsel in these appeals.
DISPOSITION
The
judgments are affirmed.
McINTYRE,
J.
WE CONCUR:
McDONALD, Acting P.
J.
AARON, J.
