THE PEOPLE v. LEE SIDNEY ALLEN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. LEE SIDNEY ALLEN, Defendant and Appellant.

B218966

Decided: June 23, 2010

John D. O'Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Lee Sidney Allen appeals from the judgment rendered after a jury convicted him of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)).1  He was sentenced to a term of three years, and ordered to pay $1,625 restitution to the victim.

We appointed counsel to represent defendant.   Counsel filed a brief raising no issues.  (People v. Wende (1979) 25 Cal.3d 436, 441-442.)   On February 10, 2010, we advised defendant that he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider.   No response has been received.

The evidence at trial showed that in 2009 vendors and entertainers were permitted to use numbered, 10-foot-square spaces along the Venice Beach boardwalk.   Some spaces were assigned seasonally, while others were offered daily, first-come, first-served.   At about 4:30 a.m. on April 4, 2009, James Brennan, who sold T-shirts, claimed daily space P-90, occupying it and reclining on a pallet.   About a half hour later, defendant, an artist who regularly sold his oil paintings at the boardwalk, approached Brennan and declared that he should leave the space, because defendant was reserving it for a friend.   Brennan replied that the space was open to whoever came first, and he would not leave it.   He resumed his position on the pallet.

A moment later, Brennan was struck on the top of his head.   He jumped up, blood streaming down his face, and saw defendant, backing away and holding a foot-long acrylic cylinder, four to five inches in diameter, which he dropped to the sand.   Brennan asked another person to call 911.   Los Angeles Police officers arrived minutes later.   They photographed Brennan and called for an ambulance.2  Brennan was taken to a nearby hospital, where nine staples were placed in his scalp to close the wound.   He suffered a scar and an indentation in his head.   In the meantime, Officer Michael Blake arrested defendant.   Officer Blake saw acrylic cylinders, of a type he had regularly seen at the beach, lying in the sand by a tree.

Michael Turner, who sold artwork near space P-90, recounted that defendant had frequently utilized that space for several weeks before the incident.   Turner recognized the acrylic cylinder as an item defendant had maintained in front of the space.   Another vendor testified she had witnessed the assault, including defendant striking Brennan on the head with what appeared to be a beer bottle, after stating, “I said this spot was taken.”   According to this vendor, three other people had been near Brennan when he was hit.   After the police left, one of them pointed out the cylinder, lying 20 feet behind where Brennan had reclined.   The vendor had previously seen the cylinder among defendant's belongings.

Defendant testified in his defense.   He denied striking Brennan, and claimed he had only seen Brennan walking on the boardwalk that morning, minutes before defendant was arrested.   Defendant explained that he used the cylinder for display and to hold down a tarpaulin covering his vending space.

The jury was instructed on both assault with a deadly weapon and misdemeanor assault (Pen.Code, §§ 240, 241, subd. (a)).

We have reviewed the entire record, and are satisfied that defendant's appellate counsel has fully complied with his responsibilities and that no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 279-280;  People v. Wende, supra, 25 Cal.3d at pp. 441, 443.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The jury found not true an enhancing allegation that in committing the assault defendant personally inflicted great bodily injury (Pen.Code, § 12022.7, subd. (a))..  FN1. The jury found not true an enhancing allegation that in committing the assault defendant personally inflicted great bodily injury (Pen.Code, § 12022.7, subd. (a)).

FN2. Photos of Brennan's wound, both at the scene and after surgical stapling, were introduced in evidence..  FN2. Photos of Brennan's wound, both at the scene and after surgical stapling, were introduced in evidence.

BIGELOW, P.J. FLIER, J.