THE PEOPLE v. GASPER CHACON (2010)

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. GASPER CHACON, Defendant and Appellant.

B222042

Decided: December 20, 2010

Gasper Chacon (appellant) appeals from the judgment entered following a jury trial that resulted in his conviction of assault by means likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)) (count 2), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) (count 3), and mayhem (§ 203) (count 4).   The jury found that appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) in the commission of count 2. After appellant waived a jury trial on his prior conviction allegations, the trial court found that appellant had suffered a prior conviction for a serious felony (robbery) within the meaning of section 667, subdivision (a)(1) and sections 1170.12, subdivisions (a) through (e) and 667, subdivisions (e) through (i) (the Three Strikes Law).   The trial court also found true the allegations of prior prison terms under section 667.5, subdivision (b).  The trial court sentenced appellant to a total prison term of 24 years and four months.   In count 3, the trial court imposed the upper term of eight years, doubled to 16 years under the Three Strikes Law;  an additional five years pursuant to section 667, subdivision (a)(1);  and an additional two years pursuant to section 667.5, subdivision (b).  In count 3, the trial court imposed eight months, doubled to 16 months.   The trial court stayed the sentence in count 2 and the great bodily injury enhancement under section 654.   We appointed counsel to represent appellant on this appeal.   After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that she had been unable to find any arguable issues.   On August 24, 2010, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.   No response has been received to date.   At appellant's trial, Harry Barton (Barton) testified that in May 2009 he was renting a room in the home of Richard Baustian (Baustian) at 6160 California Street in Long Beach.   He became friendly with appellant and Matthew Garcia (Garcia), who lived around the corner.   He knew appellant as “Menace.”   On May 4, 2009, Barton was late in paying his rent to Baustian.   In the late afternoon, he lay down on his bed for a nap.   Because he was expecting a visit from his daughter, Barton left his door ajar.   Garcia entered Barton's room and said, “You have to pay your rent, Homie.”   Barton sat up and told Garcia it was none of his business.   Garcia struck Barton, who tried to deflect the blows by curling up into a ball.   Barton managed to push Garcia off him with his feet.   Garcia flew backwards and hit a dresser.   Garcia went to the door and called for appellant.   Appellant hit Barton on the side of the head, and Barton fell back onto the bed.   Barton curled into a ball as Garcia and appellant rained punches upon him.   Both men hit Barton on the face and head.   Barton called out for help in vain.   After the two men had finished hitting Barton, Garcia said, “Don't report - you better not report this or we will come for your daughter-we know where she lives.”   Appellant asked Barton if he wanted to get shot and reached for his belt.   Barton did not see a gun or any other weapon in appellant's belt.