P. v. Padilla

Filed 10/14/09 P. v. Padilla CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Philip H. Hickok, Judge. Affirmed.

Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Michael Anthony Padilla appeals from the judgment entered following a jury trial in which he was convicted in count 1 of making criminal threats (Pen. Code, 422), in count 2 of inflicting corporal injury to a spouse/cohabitant/childs parent (Pen. Code,  273.5, subd. (a)), and his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, 1170.12, subds. (a)-(d) and 667, subd. (b)-(i)) and a prior conviction of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1). He was sentenced to prison for a total of 12 years and four months, consisting of in count 2, the middle term of three years, doubled by reason of his prior strike conviction, and in count 1, one-third the middle term of two years, which is eight months, doubled, plus five years by reason of the prior serious conviction enhancement.^[1]

The evidence at trial established that Lorena Garcia was living with appellant at their apartment in Cudahy, California. On July 27, 2008, appellant was drunk and beat her up. Appellant called her a slut and a tramp and placed both his hands around her throat and lifted her off the ground. Appellant said he had a gun on him and threatened to kill her in front of her daughter. Appellant went to his bedroom and passed out. Garcia feared for her life but did not report the incident to the police, fearing appellant would kill her.

On August 2, 2008, Ms. Garcia was talking to a girlfriend on the telephone when appellant came out of the bedroom, grabbed the phone out of her hand and hung it up. He cussed at her and called her a tramp and a stupid bitch, and accused her of fucking everyone in the complex, and the cops too. Appellant punched her three times in the face, specifically the left eye, causing the back of her head to bounce off the wall. Appellant slapped her twice on the right side, closer to her ear.

On August 3, 2008, Maywood Police Officer Dennis Azevedo responded to a call of domestic violence and met with Ms. Garcia. He observed her injuries. She had redness and swelling to her right ear, bruising around her neck, lip, shoulder, and arm. Both knees were scraped and bruised. Her eye looked like it had been blackened a couple of days before and was in the process of healing. Ms. Garcia told him she had received these injuries from appellant. She had not reported the incident before because she was afraid. She took the threat that appellant had a gun very seriously. He was a former gang member and had a lot of gang friends.

Officer Azevedo arrested appellant, and following waiver of his Miranda^[2]rights, appellant stated he got really mad at her, he didnt think he hurt her that bad. But she deserved it.

Based on the injuries to the left side of Ms. Garcias face, it was the officers opinion that she was struck with the right hand. A drawing made by appellant using his left hand was received into evidence. The court stated for the record that appellant had been using a piece of paper and a pencil to draw something and took judicial notice of the fact that appellant was using his left hand to produce the drawing.

At trial, Ms. Garcia claimed that gang members, who were in front of her apartment, had caused her injuries. She testified the injuries photographed by the police were the result of being jumped by a gang. She was beaten up because someone in the gang suspected appellant was in love with their wife or their girlfriend. Ms. Garcia was pissed she was physically hurt because of that. She thought, Why should [she] get hurt for some son-of-a-bitch thats messing up on [her]? . . . [T]hey should have jumped him.

On September 29, Ms. Garcia wrote a letter to appellant stating that he made her very happy, that he was her life, and that she was very sorry that he was going through this shit because of [her] lies just to get back at [him.] She was injured because of his infidelity and wanted to make appellant feel bad. She lied to get him thrown in jail.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On June 10, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Thereafter, he submitted a supplemental brief and a letter asserting he had received ineffective assistance of trial counsel. As examples, he cites his counsels refusal to allow him to testify, counsels failure to file several pre- and posttrial motions, counsels failure to negotiate a plea bargain, and counsels closing argument. He also requested his appellate counsel be relieved, which request was denied.

We have examined the entire record and are satisfied that no arguable issues exist. Appellants claim he received ineffective assistance of counsel at trial is not demonstrated by the appellate record. (People v. Lucas (1995) 12 Cal.4th 415, 436-437; People v. Osband (1996) 13 Cal.4th 622, 700-701.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P.J.

We concur:

WILLHITE, J. SUZUKAWA, J.

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^[1] The court stated it was imposing a consecutive sentence because of appellants prior criminal record and his prior convictions including convictions for inflicting corporal injury on a cohabitant in violation of Penal Code section 273.5.

^[2]Miranda v. Arizona (1966) 384 U.S. 436.