P. v. Vo
Filed 8/15/12 P. v. Vo CA4/3
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opinion has not been certified for publication or ordered published for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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
NHAN DI VO,
Defendant and Appellant.
G046340
(Super. Ct. No. 09NF2340)
O P I N I O N
Appeal from a judgment
of the Superior Court
of Orange
County, Richard M. King, Judge. Affirmed.
Donna L. Harris, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
*
* *
Defendant
Nhan Di Vo was convicted of assault by
means of force likely to produce great bodily injury. Defendant was granted formal probation for a
period of three years.
We
appointed counsel to represent
defendant on appeal. Appointed counsel
filed a brief pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende),
setting forth the facts of the case and requesting that we review the entire
record. Pursuant to Anders v. California
(1967) 386 U.S. 738 (Anders),
appointed counsel suggested we consider whether the failure to instruct the
jury on a lesser included offense resulted in the denial of defendant’s due
process rights, and whether the evidence supported the conviction.
On
June 18, 2012, this court
provided defendant with 30 days to file written argument on his own
behalf. That period of time has passed,
and we have received no communication from him.
We
have examined the entire record and counsel’s Wende/Anders brief, and
find no arguable issue. (
therefore affirm.
Background
During
the evening and early morning of August 13 and 14, 2009, both defendant and
Marc Ming were at the home of mutual friends.
Ming drank a lot of alcohol that evening, and also smoked marijuana and
ingested methamphetamine. Defendant was
mad at Ming because he thought Ming had stolen money from defendant to buy
beer. Ming tried to stay away from
defendant after learning defendant was mad at him. Defendant and Ming got into an altercation,
and defendant repeatedly punched Ming.
Ming
lost consciousness, and was discovered by the police several blocks away. His eyes were swollen shut, his face was
covered in blood and vomit, and he had a strong odor of alcohol on his breath.
Ming
was transported to the hospital, where he was diagnosed with a subdural
hematoma and underwent an emergency
craniotomy. Ming was in the hospital
for more than two months. He used a
walker and then a cane for two months after being discharged from the
hospital. Ming received extensive
physical therapy, but still suffered from weakness on the left side of his
body.
Defendant
was charged in an information with aggravated assault (Pen. Code,
§ 245, subd. (a)(1)); the information alleged as enhancements that he
personally inflicted great bodily injury on Ming, and personally inflicted
great bodily injury causing Ming to become comatose due to brain injury (
(b)). A jury found defendant guilty of
aggravated assault, but found the enhancements to be not true.
The
trial court suspended imposition of sentence, and placed defendant on three
years’ formal probation, subject to terms and conditions, including the
condition he serve 270 days in county jail.
Defendant was also ordered to pay various fines, assessments, and fees. Defendant timely appealed.
Analysis of Potential Issues
Appointed
counsel suggests we consider whether the trial court’s failure to instruct the
jury on battery as a lesser included offense resulted in the denial of
defendant’s rights to due process and a
fair trial. Battery
is not a lesser included offense of aggravated assault, and the trial court,
therefore, did not have a sua sponte duty to instruct the jury on
battery. (People v. Jones (1981) 119 Cal.App.3d 749, 754.)
Appointed
counsel also suggests we consider whether the evidence that defendant struck
Ming with his bare hands supported the conviction for aggravated assault,
because the jury found not true the enhancement allegations that defendant
personally caused great bodily injury to Ming.
The use of hands or fists alone is sufficient to support a conviction
for aggravated assault. (
1 Cal.4th 173, 251, fn. 27.)
To prove defendant committed aggravated assault, the prosecution was
required to prove defendant did an act that by its nature would directly and
probably result in the application of force to Ming, and that the force used by
defendant was likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1);
CALCRIM No. 875.) The prosecution was not
required to prove Ming did, in fact, suffer great bodily injury, which is an
element of the enhancements the jury found to be not true. (Pen. Code, § 12022.7, subds. (a),
(b).) Therefore, there is no
inconsistency between the jury’s guilty verdict on the aggravated assault
charge, and the not true findings on the great bodily injury enhancement
allegations.
Our
review of the record pursuant to Wende,
supra, 25 Cal.3d 436 and
appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant
in this appeal.
Disposition
The
judgment is affirmed.
FYBEL,
J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
