People v. Diaz CA3

Filed 9/19/16 P.v. Diaz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C079010

Plaintiff and Respondent, (Super. Ct. No. 14F05203)

v.

MICHAEL DIAZ,

Defendant and Appellant.

Appointed counsel for defendant Michael Diaz has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment. I We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

1

In July 2014, defendant lived with his elderly mother, Mary Diaz, and his brother, Eric Diaz.1 Mary was confined to a wheelchair, having been paralyzed on her right side due to a stroke she suffered earlier that year. Eric is mentally disabled. On July 28, 2014, Eric heard defendant breaking dishes in the kitchen. Defendant and Eric began arguing and defendant threw a can at Eric, hitting Eric in the back of the head.2 Defendant became angry about the type of food in the house. He approached Mary, who was in her wheelchair in the kitchen, and held a knife to her chest, telling her he wished she was dead and threatening to kill her. He pushed Mary’s wheelchair, causing her to fall out of the chair and hit the back of her head on the tile floor. Defendant fled the house. Eric went to the neighbor’s house and called 911. Mary lay on the floor, unable to get up. Eventually, Eric was able to get her up and back into her wheelchair. Mary called 911, first to report the assault and then again later to report that defendant had returned to the house. Defendant was charged by amended information with elder abuse likely to produce great bodily harm or death (Pen. Code, § 368, subd. (b)(1) – count one),3 assault with a deadly weapon as to Mary (§ 245, subd. (a)(1) – count two), making a criminal threat (§ 422 – count three), and assault with a deadly weapon as to Eric (§ 245, subd. (a)(1) – count four). The information alleged defendant personally used a deadly and dangerous weapon in committing counts one and three (§ 12022, subd. (b)(1)), and