Filed 7/25/17 P. v. Castro CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE JULIAN CASTRO, JR.,

Defendant and Appellant.

F073845

(Super. Ct. No. F14908911)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge.
Caitlin M. Plummer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
BACKGROUND
On September 13, 2014, defendant Joe Julian Castro, Jr., and his 16-year-old son I.C. attended a birthday party at defendant’s mother’s house. Later that night, when defendant indicated it was time to go home, I.C. stated he “wanted to stay the night [at] [his] cousin’s house . . . .” An argument ensued. At some point, defendant asked I.C., “What do you want to do, suck their dicks?” I.C. shoved defendant. Defendant then smashed a beer bottle over I.C.’s head.
Defendant was charged with assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The information further alleged he personally used a dangerous or deadly weapon within the meaning of Penal Code sections 667 and 1192.7.
At trial, defendant testified he made the vulgar remark “[in the] heat of the moment” and I.C. subsequently pushed and punched him. He insisted he did not intend to strike I.C. with the beer bottle and did not know how his son sustained the head injury. On cross-examination, defendant suggested he could have struck I.C. while he was attempting to block I.C.’s punch. When the prosecutor pointed out I.C. stood six inches taller than defendant and questioned how defendant could simultaneously block I.C.’s punch with the bottle and smash the bottle over I.C.’s head, defendant responded, “That’s what I don’t know. I mean, I was struck and I just – something just happened. It just happened so fast.”
Before closing arguments, the trial court instructed the jury:
“A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. . . . [¶] . . . [¶]
“. . . To prove that . . . defendant is guilty of [assault with a deadly weapon], the People must prove that: [¶] . . . defendant did an act with a deadly weapon other than a firearm that, by it’s nature, would directly and probably result in the application of force to a person; [¶] . . . [and] defendant did that act willfully . . . . [¶] . . . [¶] Someone commits an act willfully when he does it willingly or on purpose.”
Defense counsel Miguel Lopez argued in his summation:
“[W]e’re not disputing that [I.C.] got hit with the bottle. We’re not trying to say this didn’t happen or that he even swung it with the purpose of defending himself in react[ion]. What we’re saying is he didn’t willingly do it. . . . [Defendant] didn’t recall. He said, ‘We scuffled. I don’t know how it happened.’ And that’s a legitimate answer. He . . . doesn’t know how it happened. [¶] . . . [¶]
“. . . It is not unreasonable to believe that when [defendant] and [I.C.] became involved in a scuffle or altercation, that [I.C.] [was] hit by the bottle accidentally. That is not an unreasonable conclusion. This is going to come down to the credibility. The believability of the witnesses. . . . [¶] . . . [¶]
“. . . I’m not saying he didn’t get hit with the bottle. It would be ridiculous for me to sit here and say he didn’t get hit with the bottle. It appears very well that he may have been hit with a bottle. And I keep saying ‘it appears’ because we don’t know. But the evidence shows that he may have been hit with the bottle, but it was not willful . . . . [¶] . . . [¶]
“This was accidental.”
The jury found defendant guilty as charged and found true the special allegation. The court suspended imposition of judgment for a period of three years and placed defendant on formal probation.
DISCUSSION
Lopez did not request an instruction on accident. On appeal, defendant contends Lopez rendered ineffective assistance by failing to request such an instruction. We disagree.
“In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient and that the defendant suffered prejudice as a result of such deficient performance.” (People v. Mickel (2016) 2 Cal.5th 181, 198, citing Strickland v. Washington (1984) 466 U.S. 668, 687-692 (Strickland).) “To demonstrate deficient performance, defendant bears the burden of showing that counsel’s performance ‘ “ ‘ “fell below an objective standard of reasonableness . . . under prevailing professional norms.” ’ ” ’ [Citation.]” (People v. Mickel, supra, at p. 198.) “To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different. [Citations.]” (Ibid.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (People v. Ledesma (1987) 43 Cal.3d 171, 218, quoting Strickland, supra, at p. 694.)
Assuming, arguendo, Lopez should have requested an instruction on accident, his decision not to do so did not amount to prejudicial error because “ ‘the factual question posed by the omitted instruction was necessarily resolved adversely to . . . defendant under other, properly given instructions.’ ” (People v. Jones (1991) 234 Cal.App.3d 1303, 1314, overruled in part by People v. Anderson (2011) 51 Cal.4th 989, 998, fn. 3.) Here, the court instructed the jury: (1) a conviction for assault with a deadly weapon requires proof beyond a reasonable doubt that defendant “willfully” acted; and (2) “willfully” means “willingly or on purpose.” In view of the jury’s guilty verdict, “it is clear, beyond credible argument, that the jury necessarily rejected the evidence adduced at trial that would have supported a finding to the effect that defendant’s ‘accident and misfortune’ defense . . . was valid, thus implicitly resolving the question of that defense adversely to defendant.” (People v. Jones, supra, at pp. 1315-1316.) Furthermore, the jury was apprised of the accident defense through defendant’s testimony and Lopez’s summation. (See People v. Corning (1983) 146 Cal.App.3d 83, 88-89.) Thus, we find no reasonable probability of a more favorable verdict for defendant had an accident instruction been requested and given. Accordingly, we reject defendant’s claim.
DISPOSITION
The judgment is affirmed.