P. v. Quiroz

Filed 5/25/06  P. v. Quiroz CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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A jury convicted defendant of assault with a deadly weapon and by means of force likely to produce great bodily injury.   (Pen. Code, §§ 245, subd. (a)(1); 12022.7.)  The court sentenced defendant to the middle term of three years in prison plus three years for the great bodily injury enhancement, staying the knife-use enhancement.  Defendant appeals.  He contends that the court erred prejudicially in failing to properly instruct the jury on defendant's mistake of fact defense.  We affirm.

FACTS

Prosecution

     Benny Quiroz, the defendant, rented a room in a house owned by Kathy Steer.  Floyd William Case (Case), the victim, and his wife lived in another house on the same property.  On the same day of the assault, Lynn Logan moved into a travel trailer on that property.  Later that day, she was cleaning the trailer with her friends, Julie, Justin, and David.

     Case started drinking in the early afternoon.  By the time he went to bed, he had drunk six to eight cans of beer.  Later that night, Case was awakened by loud music and yelling.  He thought the noise was coming from the trailer and went to the trailer to retrieve his stereo.  Case saw defendant at his van with the radio playing.  Case told defendant the radio was â€