People v. Datson CA4/1

Filed 10/26/22 P. v. Datson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079947

Plaintiff and Respondent,

v. (Super. Ct. No. SCD286370)

GREGORY DATSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. Matthew R. Garcia, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. A jury convicted Gregory Datson of one count of assault with a deadly

weapon (Pen. Code,1 § 245, subd. (a)(1)) and found true the allegation that Datson personally inflicted great bodily injury on the victim (§ 12022.7,

1 All further statutory references are to the Penal Code.

subd. (a)). The court found true a serious felony prior conviction (§ 667, subd. (a)) and a strike prior (§ 667, subds. (b)-(i)). At the sentencing hearing, the court struck the two alleged priors and imposed a four-year upper term for the assault and a consecutive three-year term for the great bodily injury enhancement. Datson filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Datson the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS Appellate counsel has submitted an accurate summary of the facts of the offense which we will incorporate into this opinion to provide background. “A. THE PROSECUTION’S CASE “Bennett Hazzard and his wife Empiress Williams went to the Encanto liquor store on Imperial Avenue around 9:30 p.m. Williams went into the store to shop while Hazzard waited outside with their dog. While waiting outside with his dog, a man approached Hazzard. The man was taller than Hazzard, and he seemed bothered by something. He was talking about his phone and some money that had been taken from him. He moved his hands back and forth and punched the palm of one hand with the other. He asked Hazzard ‘hey motherfucker, where the fuck is my money? [ . . . ] Where my phone at? You took my shit.’ Hazzard told the man ‘you got me for somebody else.’ The man did not seem all the way there in his head. Hazzard called the man a dope fiend, which upset the man. The man lunged at Hazzard and punched him in the face. Hazzard took a fighting stance and tried to defend