P. v. Medina

Filed 1/31/07  P. v. Medina CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Fresno County.  W. Kent Hamlin, Judge.

            David R. Mugridge for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted Angel Tanguma Medina of two counts of assault with a deadly weapon (a knife) (Pen. Code, §  245, subd. (a)(1)),^[1] kidnapping for the purposes of rape (§  209, subd. (b)(1)), and attempted rape (§§  261, subd. (a)(2), 664).  The trial court sentenced him to an indeterminate term of 15 years to life and a consecutive determinate term of four years for various enhancements found true by the jury.

Medina argues (1) the trial court erred in consolidating the two complaints filed by the People; (2) he received ineffective assistance of counsel; and (3) the aggravated kidnapping count was not supported by substantial evidence.  We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The charges against Medina arose out of two separate incidents.  We will discuss the testimony by incident. 

I.          The Fight

After a workout at a gym, William Manson and Francisco Medina went to Francisco Medina's vehicle to look at some pictures.  While in the parking lot, Manson heard some yelling but could not understand what was being said.  When Manson stepped away from the vehicle, he discovered the person yelling was challenging him to a fight.  Manson approached the man who was yelling, Medina.  

Manson told Medina that if he wanted to fight, then to throw the first punch.  Medina approached and took Manson to the ground in a wrestling move.  When the two stood up, Medina pulled out a knife.  Manson started backing away.  Medina either swung the knife around or lunged at Manson with the knife.  Manson and Francisco Medina kept backing away.  Someone then yelled that the police had been called.  Medina got in his vehicle and left.^[2]  

Officer John Willow responded to a report of a possible assault with a deadly weapon.  He met the victim, Manson, and three witnesses, Francisco Medina, Ronnie Potter, and Sherry Potter.  The witnesses provided Willow with a possible license plate number and a description of the assailant's vehicle.  Medina was identified as one of the registered owners of the pickup.  A photo lineup that included Medina was shown to the witnesses.  Each witness identified Medina as the assailant.  

The next day Willow discovered Medina was incarcerated in the Fresno County Jail on unrelated charges.  Willow interviewed Medina, who admitted the assault but stated that it was instigated by Manson and Francisco Medina.  Medina claimed the two men kept approaching him and, even though he did not want to fight, he took one of the men down to the ground in a wrestling move.  When Medina stood up, he pulled his knife to ensure the fight did not escalate.  Medina then got into his vehicle and left the scene.  

II.        Attempted Rape

Later that same night, Stella^[3] finished her janitorial job and began walking home.  She stopped for dinner and spoke with a friend at a local restaurant.  When she continued her journey home, she saw a burgundy-colored car with black tinted windows pass her twice.  The car parked on a side street and a young man got out of the car and asked Stella if she â€