People v. Aguirre CA4/1 ( 2016 )

Filed 2/11/16 P. v. Aguirre CA4/1
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067548
Plaintiff and Respondent,
v. (Super. Ct. No. SCD252492)
RENE JAVIER AGUIRRE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Eugenia
Eyherabide, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, for Plaintiff and Respondent.
A jury convicted Rene Javier Aguirre of assault by means likely to produce great
bodily injury (Pen. Code,1 § 245, subd. (a)(4); counts 1 and 2) and battery with serious
bodily injury (§ 243, subd. (d); count 3). It found true that as to count 2, Aguirre
1 Statutory references are to the Penal Code.
personally inflicted great bodily injury within the meaning of section 12022.7,
subdivision (a) and as to counts 2 and 3, he personally inflicted great bodily injury within
the meaning of section 1192.7, subdivision (c)(8). The court stayed Aguirre's sentence
and imposed a term of three years probation on condition he spend 365 days in local
custody and waive section 4019 presentence credits. Aguirre appeals under People v.
Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738(Anders). We offered Aguirre the opportunity to file his own brief on appeal but he has
not responded.
FACTUAL BACKGROUND
Jaime Lopez testified that on November 23, 2013, he and Aguirre were having a
friendly chat at a downtown San Diego bar. Aguirre asked him where he was from, and
Lopez replied he was from National City. Aguirre said he was from the neighboring area
called Shelltown in San Diego and, unprovoked, hit Lopez, who lost consciousness.
Afterwards, as Aguirre walked past a nightclub, he slapped Shaken Bissenkulov,
who was standing outside. Bissenkulov testified that he and his friend, Ruslan
Farutdinov, followed Aguirre, who took off his shirt and fought them. Aguirre punched
Farutdinov in the face and, as a result, Farutdinov was taken to the hospital, where he
received approximately seven stitches to his lips. For a couple of weeks afterwards
Farutdinov suffered from headaches and nausea.
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DISCUSSION
Appellate counsel states she is unable to identify any reasonably arguable issues
for appeal and has asked this court to review the record for error. (Wende, supra, 25
Cal.3d 436.) Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the
following issues in order to assist the court in its search for error:
1. Should Aguirre's count 2 conviction be stricken as a lesser included offense of
his count 3 conviction?
2. Did substantial evidence support the count 3 conviction and the finding Aguirre
did not act in self-defense?
3. Did sufficient evidence support the finding Aguirre personally inflicted great
bodily injury on Farutdinov?
4. Did the court abuse its discretion by requiring Aguirre to waive his section
4019 credits to receive probation and in refusing to limit his custody time to time served?
5. Should Aguirre's enhancement for personally inflicting great bodily injury be
stricken under section 654?
We have reviewed the entire record consistent with the mandate of Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any reasonably
arguable issues for reversal on appeal. Aguirre has been represented by competent
counsel on this appeal.
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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