Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Superior Court County of Los Angeles, Marsha N. Revel, Judge, No. BA295958-01
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
GILBERT, P.J.
Moses Gonzalez appeals a judgment following conviction of attempted premeditated deliberate murder, infliction of corporal injury to a cohabitant, and assault with a deadly weapon, with findings of personal weapon use, infliction of great bodily injury, prior serious felony convictions, and prior prison terms. (Pen. Code, §§ 664, 187, subd. (a), 273.5, subd. (a), 245, subd. (a)(1), 12022, subd. (b)(1), 12022.7, subd. (e).) We appointed counsel to represent him in this appeal. After counsel's examination of the record, she filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.) On June 11, 2009, we advised Gonzalez that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We have received a response from him contending that 1) he did not receive the effective assistance of counsel in part because he received representation by a different deputy public defender shortly before trial; 2) his attorney did not present additional evidence of third party culpability; 3) he did not receive a fair trial because a spectator uttered a epithet; 4) the trial court did not instruct that the general intent instruction does not apply to specific intent crimes and the specific intent instruction does not apply to general intent crimes. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case, and a brief discussion of Gonzalez's contentions.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Gonzalez lived with his fiancée, Sylvia Cruz, in a Los Angeles apartment. Cruz's daughter and her boyfriend also lived in the apartment.
In the evening of January 4, 2006, Gonzalez and Cruz consumed alcohol and watched a football game. Later they argued concerning Gonzalez's desire to obtain funds from his bank ATM to purchase drugs. Cruz suggested that they end their relationship, and she went to sleep on the living room sofa. Cruz has no memory of the events that followed.
After midnight, Cruz entered her daughter's bedroom and collapsed from multiple stab wounds. The police emergency dispatcher telephoned in response to a call from Gonzalez and asked if the family needed assistance. As Cruz's daughter tended to her, Gonzalez entered the apartment and took an article from the bedroom he shared with Cruz. He left the apartment before assistance arrived and eventually went to Texas.
Police officers recovered a freshly rinsed knife from the kitchen sink in the apartment. They were unable to recover any fingerprints or bloodstains from the knife.
Police officers questioned Cruz in the ambulance and in the hospital. She stated that an ex-boyfriend attacked her, and later stated that "Eddie Soto" was her ex boyfriend. Officers later questioned Soto who was forthcoming in his responses.
Three weeks prior to the attack, Gonzalez lunged at Cruz with a knife and threatened to kill her and her family. They had argued concerning his drug use and Cruz had threatened to leave him.
The jury convicted Gonzalez of all charged crimes. In a separate proceeding, the trial court found that Gonzalez suffered three serious felony strike convictions and served four prior prison terms. (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).) The court sentenced Gonzalez to a prison term of 46 years to life for count 1 (attempted murder), 29 years to life for count 2 (infliction of corporal injury), and 29 years to life for count 3 (assault with a deadly weapon). It stayed sentence for counts 2 and 3 pursuant to section 654. The court imposed a $1,000 restitution fine, a $1,000 parole revocation restitution fine, and a $60 court security fee. (§§ 1202.4, subd. (b), 1202.45, 1465.8.) It also ordered Gonzalez to pay $51,592.50 in victim restitution. The court awarded Gonzalez 1,087 days of presentence custody credit.
DISCUSSION
To establish a claim of ineffective assistance of counsel, defendant must show that trial counsel did not act in a manner expected of a reasonably competent attorney acting as a diligent advocate, and that he would have obtained a more favorable result absent counsel's failings. (In re Cudjo (1999) 20 Cal.4th 673, 687.) Gonzalez does not describe his attorney's deficient acts nor does he establish that he would have obtained a more favorable determination absent the asserted deficiencies of his attorney.
We have reviewed the record and note that Gonzalez did present a defense of third party culpability - that Eddie Soto was the assailant who stabbed Cruz. Additional evidence of Soto's culpability was subject to the rules of evidence, including rules regarding relevance and undue prejudice. (People v. Hamilton (2009) 45 Cal.4th 863, 913-914.) We review the trial court's rulings concerning evidence of third party culpability for an abuse of discretion. (Ibid.) Here the additional evidence was inadmissible hearsay. The trial court did not abuse its discretion in excluding it.
During trial, a relative of the victim stated from the audience that Gonzalez "needs to burn in hell." The trial court questioned the jury regarding the utterance, and no juror heard the remark. Outside the presence of the jury, the trial court admonished the audience member not to make further comments or to "make faces" at the witnesses. Gonzalez suffered no prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We have reviewed the instructions regarding the charged crimes. The instructions properly describe the mental state - general intent or specific intent - required for each crime. There is no error and no possibility the jury may have been confused regarding the mental state required for each crime. We presume the jurors understand and follow the court's instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.)
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.