People v. Argueta CA3

BACKGROUND

The facts underlying defendant’s convictions are taken from Argueta, supra, C071454, this court’s unpublished opinion in his previous appeal. We granted defendant’s motion to incorporate by reference the record on appeal in Argueta. In 2011, when defendant was 24 years old and on parole, he attacked a security guard during a fight at a casino. Surveillance footage showed defendant approach the guard while the guard was engaged with another individual on the ground. Defendant looked both ways, raised his foot high, and stomped on the back of the guard’s head. A second man kicked the guard in the face immediately after defendant. A witness described the second kick as a full-energy foot kick but the guard could not say whether the stomp or the kick was more powerful. (Argueta, supra, C071454.) In 2012, a jury found defendant guilty of assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) and battery resulting in serious bodily injury (§ 243, subd. (d)). In a bifurcated proceeding, the trial court found true allegations of two prior violent or serious felony convictions and a prior prison term (§§ 667, subds. (b)-(i), 667.5, subd. (b)). The…