Filed 9/18/17 P. v. Dao CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Cuong Huy Dao appeals from a judgment of conviction entered after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).[1] The jury also found that defendant personally inflicted great bodily injury on the victim and that he personally used a dangerous and deadly weapon in the commission the offense (§§ 12022.7, subd. (a), 667, 1192.7). In a bifurcated proceeding, the trial court found that defendant had suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and one prior serious felony conviction (§ 667, subd. (a)). The trial court sentenced defendant to state prison for a total term of 16 years. On appeal, defendant contends: there was insufficient evidence to support his conviction for assault with a deadly weapon; and trial counsel rendered ineffective assistance by failing to request an instruction regarding the antecedent assaults doctrine.[2] The judgment is affirmed.

I.Statement of Facts

At around 8:00 p.m. on July 22, 2013, Sukhjinder Singh and Gurminder Singh were working at Lion Liquors in San Jose. Sometime before 8:15 p.m., defendant entered the store and brought a 24-ounce can of AriZona tea to the counter. Defendant, who had given Sukhjinder a $10 bill, became angry because the price of the tea was $1.10 when other stores charged $1.04. Sukhjinder responded, “It’s okay. You can just give me a dollar.” Defendant continued to argue with Sukhjinder. Sukhjinder felt threatened by defendant when defendant pointed at him and opened his jacket. Sukhjinder eventually placed the $10 bill on the counter near the can, told defendant that he was not going to sell him the tea, and asked him to leave the store. Defendant slammed his fist on the counter and struck Sukhjinder’s hand. Sukhjinder took the can as defendant continued to argue with him. After defendant spit on Sukhjinder, Sukhjinder threw the can as hard as he could at defendant and hit his head. Defendant responded by picking up merchandise on the counter and throwing it at Sukhinder. Meanwhile, Gurminder had grabbed a baseball bat and held it up to scare defendant. Gurminder also attempted to get defendant to leave by saying, “ ‘Let’s go, brother. Let’s go, brother.’ ”

Sukhjinder grabbed the baseball bat from Gurminder, came out from behind the counter, and asked defendant to leave. Sukjhinder swung the bat and hit defendant. As Sukhjinder started to swing the bat again, defendant grabbed him. Both Sukjhinder and defendant held onto the bat and proceeded to scuffle. Gurminder continued to ask defendant to leave and eventually separated the two men. Escorted by Gurminder, defendant walked back towards the store exit. Sukhjinder walked to the front of the counter and turned away from the store exit. At that point, defendant, who had been at the doorway, walked to where Sukhjinder was standing, and continued to argue with him. Defendant poked his finger twice into Sukhjinder’s chest. Sukhjinder took two or three steps backwards and knocked defendant’s hat off his head with his left hand. Sukhjinder was holding the bat in his right hand, but he did not raise it. Defendant immediately responded by stabbing Sukhjinder multiple times.

When Luz Langarcia[3] entered the store, the altercation was already in progress. She saw defendant walk to the door with Gurminder and thought defendant was leaving. However, defendant returned after reaching the doorway. According to Langarcia, defendant “kind of rushed” Sukhjinder. Before defendant stabbed Sukhjiner, Gurminder and Sukhjinder were telling him to leave the store. Defendant remained at the location until the police arrived.

Sukhjinder was in the hospital for approximately one and a half weeks. Defendant had a “half-dollar” sized bump on the left side of his forehead.

II. Discussion

A.Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to support his conviction for assault with a deadly weapon, because the prosecution did not prove beyond a reasonable doubt that he was not acting in self-defense.

“Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact’s findings, the reviewing court’s view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]” (People v. Hubbard (2016) 63 Cal.4th 378, 392.)

“ ‘To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The threat of bodily injury must be imminent [citation], and ‘. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ [Citations.] [¶] . . . [A]lthough the test is objective, reasonableness is determined from the point of view of a reasonable person in the defendant’s position. The jury must consider all the facts and circumstances it might ‘ “expect[] to operate on [defendant’s] mind . . . .” [Citation.]’ [Citation.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.)

Here, there was an initial altercation between defendant and Sukhjinder. While defendant argued with Sukhjinder, defendant slammed his fist on the counter, struck Suhkjinder’s hand, and spit on him. After Sukhjinder threw a can at defendant, defendant threw merchandise at Sukhjinder. Sukhjinder then grabbed the bat from Gurminder and hit defendant’s torso. The two men held onto the bat while Gurminder tried to separate them. Gurminder eventually escorted defendant to the exit while Sukhjinder remained in front of the counter. As the jury was instructed, “[t]he right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws, then the right to use force ends.” (CALCRIM No. 3474.) Thus, the jury could have reasonably concluded that any need for defendant to defend himself had ended at this point.

Defendant did not leave the store. As Sukhjinder turned to walk away from the exit, defendant left the exit, walked back into the store toward Sukhjinder, argued with him, and jabbed his finger twice into Sukhjinder’s chest. Since, as the jury was instructed, “[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force,” (CALCRIM No. 3472), the jury could have reasonably concluded that defendant was not entitled to claim self-defense when he reinitiated contact with Sukhjinder. Sukhjinder’s act of pushing defendant’s hat off his head did not change this conclusion. As the jury was instructed, “[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense.” (CALCRIM No. 3470.) The jury could have reasonably concluded that defendant used more force than was reasonable. Thus, there was substantial evidence to support defendant’s conviction for assault with a deadly weapon.

Defendant argues that he reasonably feared that Sukhjinder would hit him with the bat. However, though Sukhjinder held the bat in his right hand prior to the stabbing, he did not raise it in a threatening manner. Thus, the jury could have reasonably concluded that defendant did not act reasonably under the circumstances.

B.Ineffective Assistance of Counsel

Defendant next argues that he was deprived of the effective assistance of counsel when trial counsel failed to request an instruction regarding the antecedent assaults doctrine.

Here, the trial court instructed the jury on self-defense pursuant to CALCRIM Nos. 3470, 3471, 3472, 3474.[4] During a discussion regarding the jury instructions, trial counsel agreed that the modified version of CALCRIM No. 3470, which given by the trial court was “consistent with the defense theory in this case.” The omitted portion of CALCRIM No. 3470 stated: “If you find that ______ <insert name of victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.”

“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] . . . If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966.)

An instruction on antecedent threats by the victim against the defendant is not a “general principle[ ] of law” on which the trial court has a duty to instruct sua sponte. (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) However, when the defendant asserts self-defense and there is evidence that his or her actions were influenced by the victim’s prior threats or assaults, he or she is entitled upon request to instructions on the effect of antecedent threats upon the reasonableness of his or her conduct. (People v. Minifie, supra, 13 Cal.4th at p. 1069.) “The issue of the effect of antecedent assaults against defendant on the reasonableness of defendant’s timing and degree of force highlights . . . a particular piece of evidence. An instruction on the topic of antecedent assaults is analogous to a clarifying instruction.” (People v. Garvin, at p. 489.)

Focusing on the phrase “in the past” in the instruction, the Attorney General contends that the antecedent threat instruction is not properly given when the threats are made at the same time as the use of force in self-defense. Defendant responds by arguing that “[t]here is no reason why a threat made 10 minutes ago should be considered to have less of an effect on a person’s reasonable belief that the person uttering it means him harm than a threat made a day, a week or a month ago.”

We need not resolve this issue. Even assuming that trial counsel’s performance was deficient, defendant has failed to show prejudice. The self-defense instructions given to the jury adequately covered the defense theory. In particular, the jury was instructed that “[w]hen deciding whether the defendant’s beliefs were reasonable,” it was to “consider all the circumstances as they were known to and appeared to the defendant, and [to] consider what a reasonable person in a similar situation with similar knowledge would have believed.” Trial counsel argued that these circumstances included Sukhjinder’s throwing the can at defendant, hitting defendant with the bat, swinging the bat again, hitting defendant’s face, and knocking off his hat, and defendant reacted defensively to this conduct. Based on the instructions given and trial counsel’s argument, it is not reasonably probable that the result would have been more favorable to defendant if an instruction on antecedent threats or assaults had been given.

III.Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.