P. v. West





















Filed 6/18/13 P. v. West 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Sacramento)




>

THE PEOPLE, Plaintiff and Respondent, v. JAMES ALLEN WEST, Defendant and Appellant.

C071468 (Super. Ct. No. 10F08421)

Appointed
counsel for defendant James Allen West has filed an href="http://www.mcmillanlaw.com/">opening
brief that sets forth the facts of the case and
asks this court to review the record and determine whether there are any href="http://www.fearnotlaw.com/">arguable
issues on appeal.href="#_ftn1"
name="_ftnref1" title="">[1] ( ADDIN BA xc <@cs> xl 36 s
GMMSLB000001 xhfl Rep xpl 1 l ">People v. Wende (1979)25 Cal.3d 436"
People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result
in a disposition more favorable to defendant, we affirm the judgment.

We
provide the following brief description of the facts and procedural history of
the case. (See ADDIN
BA xc <@cs> xl 47 s GMMSLB000002 xhfl Rep xpl 1 l "People
v. Kelly
(2006)40 Cal.4th 106, 110, 124" People v. Kelly (2006) 40 Cal.4th 106, 110,
124.)

On
December 22,
2010, Scott Murray, a hotel valet,
noticed some “quick movement” near the park across the street. Three men were on the sidewalk about 50 yards
away. One of the men, Reggie Collins,
was sitting on the sidewalk with his back toward the buildings while defendant
stood over him.

Murray
saw defendant swing his right hand down toward Collins’s face. Defendant then kicked Collins in the head
with his right foot. Both the punch and
kick were wild but landed. The third
man, who appeared to be urging defendant to leave, had left.

Murray
approached the men in an attempt to intervene.
As he approached, he heard defendant tell Collins he would “kick your
fucking ass.” As Murray
reached Collins, he saw Collins’s face was bloody and his nose was bleeding and
bruised. He called 911 from his cell
phone for assistance.

Officer
Trapani arrived on the scene within minutes.
Defendant, who had walked into the park after the assault, had returned
and was sitting on the sidewalk near Collins.
Both men were intoxicated and there was a bottle of liquor on the ground
nearby. Collins, who had lacerations and
blood around his ear and eye, was transported to the hospital. Defendant had been wearing boots with steel
toes.

Defendant
was charged with battery resulting in serious bodily injury ( ADDIN BA xc <@st> xl 27 s GMMSLB000003
xpl 1 l "Pen. Code, § 243, subd. (d)"
Pen.
Code, § 243, subd. (d))href="#_ftn2" name="_ftnref2" title="">[2]
and assault with a deadly weapon or with force likely to produce great bodily
injury ( ADDIN BA xc <@osdv> xl 19
s GMMSLB000005 xpl 1 l "§ 245, subd. (a)(1)" name="_BA_Cite_11">§ 245, subd. (a)(1)). It was further alleged defendant had a prior
serious felony and strike conviction.
(§§ ADDIN BA xc <@osdv> xl 57
s GMMSLB000006 xpl 1 l "§§ 667, subd. (a), 667, subds. (b)-(i),
1192.7, subd. (c)" name="_BA_Cite_12"> 667, subds. (a), (b)-(i), 1192.7, subd. (c).)

Proceedings
were suspended from February to August 2011, due to defendant’s mental
incompetency to stand
trial. Jury trial commenced on November 29, 2011. At the close of the prosecution’s evidence,
the People dismissed the battery charge for lack of evidence.

The
jury found defendant guilty of assault with a deadly weapon and, in a
bifurcated court trial, the court found the prior conviction allegations
true. The trial court denied defendant’s
motion to dismiss his prior strike and sentenced him to the lower term of two
years, doubled, for the assault and a consecutive five years for the prior
serious felony enhancement. The trial
court imposed various fines and fees, including a $500 restitution fine, and
awarded defendant 918 days of href="http://www.mcmillanlaw.com/">custody credit.

Defendant
appeals.

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.





BLEASE , Acting
P. J.





We concur:





NICHOLSON , J.





MAURO , J.