People v. Aveno CA2/8

Filed 4/27/16 P. v. Aveno CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B266423

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA434378) v.

MARIO AVENO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. La Forteza, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, Larry Pizarro, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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A jury found appellant Mario Aveno guilty of two counts of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) involving two victims, with a finding as to each count that Aveno personally inflicted great bodily injury (GBI) on the respective victim (§ 12022.7, subd. (a)). The trial court sentenced Aveno to a total aggregate term of nine years in state prison consisting of the upper term of four years on count 1, plus a three- year term for the GBI finding, and a one-year term on count 2 (one-third the midterm), plus a one-year term for the GBI finding (one-third the midterm). Appointed counsel on appeal filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Aveno filed a letter brief asserting various claims of error. We affirm the judgment. FACTS The Crimes During the early morning hours on March 6, 2015, Kalpesh Patel and Amit Patel left a local bar, and were walking on Hollywood Boulevard, trying to call for an Uber driver, when Aveno attacked them with a hammer. Both Patels suffered serious head injuries. The Prosecution In April 2015, the People filed an information charging Aveno with two counts of assault with a deadly weapon upon Kalpesh Patel and Amit Patel, each with an allegation as to that Aveno personally inflicted GBI on the respective victim. The charges were tried to a jury in July 2015, at which time Kalpesh, Amit and a number of police witnesses testified for the prosecution. The evidence established the facts summarized above. Aveno was represented by a public defender, and testified in his own defense. Aveno explained that, at the time of the incident, he “perceived” that “there’s always people attacking homeless people in Hollywood.” Further, that the Patels appeared to be drunk and were acting aggressive as they walked toward him, and that they hit him first. Aveno testified he had been afraid that the Patels were going to try to take a guitar that he