THE PEOPLE v. EDSON ERNESTO LOPEZ (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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Defendant and appellant Edson Ernesto Lopez (defendant) was charged by information of one count of assault by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) and one count of battery inflicting serious bodily injury (Pen.Code, § 243, subd. (d)).  Following trial by jury, in which defendant testified on his own behalf, defendant was convicted on both counts.   He was sentenced to the middle term (three years) on count 1in state prison, plus three years stayed on count 2, with 164 days of presentence custody credit.

Defendant filed a timely notice of appeal and we appointed appellate counsel to represent him.   Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ) in which no issues were raised.   The brief included a declaration from counsel that she reviewed the record and sent a letter to defendant explaining her evaluation of the record.   She further declared that she advised defendant of his right, under Wende, to submit a supplemental brief within 30 days.   Defendant did not file any supplemental brief with the court.

The record supports the conviction rendered by the jury.   On the afternoon of April 30, 2009, Erika Hernandez (Hernandez) was walking down Valley View Avenue in La Mirada, when a man on an orange beach cruiser bicycle went by.   Within seconds of passing, Hernandez was attacked from behind.   The man hit Hernandez repeatedly in the face until she fell to the ground, whereupon he began kicking her in the head and stomach.   She lost consciousness and could not identify defendant at trial, but verified the extent of her injuries, including a split lip, and identified the bicycle photographed by the police at the scene.   Defendant was a stranger to Hernandez, and she had no idea what precipitated the attack.

Two witnesses, Ruben Alejandro (Alejandro) and Juan Gonzalez (Gonzalez), saw the assault and came to Hernandez's aid.   Alejandro reached Hernandez first and pulled defendant off and was startled to realize that the attacker was his roommate.   Both Alejandro and Gonzalez identified defendant as the attacker and corroborated Hernandez's testimony that she was repeatedly hit and kicked by defendant.   Defendant took the stand in his own defense and denied knowing Hernandez and denied attacking her in any way.

We have examined the entire record and are satisfied that appointed counsel fully complied with her responsibilities and that no arguable appellate issues exist.  (People v. Kelly (2006) 40 Cal.4th 106;  Wende, supra, 25 Cal.3d 436.)   We therefore affirm the judgment below.   However, we find that the abstract of judgment contains an error.   It erroneously notes the conviction resulted from a guilty plea to both counts instead of by way of jury verdict.   The trial court is therefore directed to correct the abstract of judgment accordingly.

DISPOSITION

The judgment is affirmed.   The trial court is directed to prepare a modified abstract of judgment that correctly indicates the disposition of the action by way of jury verdict and not by plea, and to transmit a certified copy of the modified abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

RUBIN, ACTING P. J. FLIER, J.