Opinion
E071760
10-28-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANGEL LIRA, Defendant and Appellant.
Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1800559) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed. Lillian Hamrick, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant, Michael Angel Lira, guilty of assault with a deadly weapon other than a firearm (count 1; Pen. Code, § 245, subd. (a)(1)) and bringing heroin into jail (count 2; § 4573). The jury additionally found true an allegation defendant had personally inflicted great bodily injury upon the victim in the count 1 offense. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) Thereafter, defendant admitted suffering a prior serious felony conviction (§ 667, subd. (a)) and three prior strike convictions (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)). After striking two of defendant's prior strike convictions, the court sentenced defendant to an aggregate term of imprisonment of 18 years.
All further statutory references are to the Penal Code unless otherwise indicated.
After defense counsel filed a notice of appeal, this court appointed counsel to represent defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a statement of the facts, and identifying three potentially arguable issues: (1) whether the People violated defendant's Fifth Amendment rights by relying upon defendant's prearrest silence; (2) whether the court prejudicially erred by instructing the jury with CALCRIM No. 226; and (3) whether the trial court prejudicially erred in instructing the jury on the nature of a deadly weapon. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim testified that on January 6, 2018, he was attempting to pass through the alley of his apartment complex in his vehicle, but was blocked by his neighbor's car. He asked his neighbor to move her vehicle, but she told him "to get out of here, mother fucker." The victim told her she was crazy and drove by slowly. He then drove to a nearby park where he unloaded wood and tools. The tools he unloaded included a hammer, a ratchet, a small socket, and a screwdriver.
The victim opened his car door looking for a bag of nails when he heard yelling; defendant, an individual who was always at his neighbor's apartment, then hit the victim in the head from behind with a hammer. The victim turned around to face defendant; they began to wrestle. Defendant repeatedly yelled: "'I'm gonna kill you.'" Defendant swung the hammer an additional six to eight times, hitting and breaking the victim's thumb. Blood was "gushing" down his head, covering his chest, and flowing down to his stomach and knees. The victim saw his neighbor in defendant's car. Defendant took the victim's tools; defendant refused to give them back, threatening to "finish killing you, asshole."
The victim drove to his apartment where his wife called 911. The police and an ambulance arrived. Ambulance personnel shaved a portion of the victim's head in order to treat his wound. Ambulance personnel took the victim to the hospital where an emergency physician placed four staples in his head. The physician prescribed pain medication. The victim was in pain for 15 days thereafter; he primarily slept during that period. The victim still had pain on his head if he touched the area of the wound; he still had difficulty flexing his thumb.
The victim's wife testified that on the day of the incident she heard the victim honk; she looked out the window and saw their neighbor in a truck yelling at the victim. The two exchanged middle fingers. Both vehicles then left. The neighbor's vehicle returned shortly thereafter. Defendant told her son and she: "[T]ell your dad when I see him I'm going to catch him and we're going to get him." A few minutes later, the victim came in "drenched in blood." She called 911; the police and an ambulance arrived thereafter.
An officer dispatched to the apartment that day made contact with the victim, who was being treated by emergency medical personnel. The victim had an approximately two-inch laceration on the top of his head. The victim said he had been struck once in the head.
An officer dispatched to the apartment complex the next day to conduct a supplemental report contacted the neighbor. She provided him with defendant's name and a phone number as a person involved in the incident. The officer called the number and asked for defendant. The person on the phone, whom the officer believed to be defendant, told him the people upstairs were disrespecting the neighbor. When the officer attempted to go into further detail, defendant hung up.
On January 19, 2018, another officer was dispatched to another location where defendant had already been detained and searched. The officer drove defendant to the jail where he was searched. A correctional deputy found two bindles of a tar-like substance on defendant, one hidden in defendant's buttocks. Both bindles tested positive for heroin.
In defendant's defense, the neighbor testified the victim passed her in his car and told her "to get out of his f-ing spot and started calling [her] names." The neighbor got out of the vehicle; the victim followed her and attempted to spit in her face. The neighbor turned and the spit hit her on the shoulder. Defendant asked the victim to leave the neighbor alone. The neighbor left in defendant's vehicle.
The neighbor later denied that the spit hit her at all.
The neighbor, defendant, and the victim all arrived at the park at the same time. The victim pulled a hammer from out of his vehicle. He came and hit defendant from behind on the back of his head. Defendant took the hammer from the victim and hit him back. Defendant and the neighbor went to defendant's wife's house to clean up the blood, which was "squirting out all over the place."
Defendant testified that he was in the neighbor's apartment when he heard yelling between her and someone else. The victim called the neighbor a prostitute and bitch. Defendant left the apartment; the neighbor got into the car with him. Defendant asked the neighbor in which direction the victim had left. The neighbor told him the victim had gone in the direction of the park. Defendant drove to the park and parked close to the victim.
Defendant exited his vehicle and approached the victim; he saw the victim with a ratchet in his hand. The victim swung the ratchet at defendant and hit him in the chest and shoulder three times. Defendant reached down to grab a hammer out of the victim's car with which to defend himself when the victim hit defendant once in the head; defendant reciprocated.
Defendant returned to his truck with the victim's tools, which he intended to retain as evidence; he drove to his wife's house where he threw the tools over the fence. An officer contacted him by phone the day after the incident; defendant hung up on the officer.
Officers arrested defendant on January 19, 2018. He did not give the police the victim's tools. Defendant admitted using heroin daily that month. Defendant had heroin on his person when he was booked into jail; he had some in his anus.
The court instructed the jury with CALCRIM Nos. 917, 3470, and 3472, the pattern jury instructions on self-defense. The court overruled defense counsel's objection to CALCRIM No. 3472. The court instructed the jury, without objection, with CALCRIM No. 875, reading: "A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one used in such a way that it is capable of causing and likely to cause death or great bodily injury." The court also instructed the jury, without objection, with CALCRIM No. 226, the pattern jury instruction on evaluating the credibility of witnesses.
CALCRIM No. 3472 reads: "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." --------
During the People's closing argument, the prosecutor expounded upon the use of CALCRIM No. 226 in judging the credibility of witnesses, specifically mentioning the neighbor's and defendant's testimonies. When referring to CALCRIM No. 875, the prosecutor argued: "And that's what a hammer can transform into when it's used in a way where it's directed at somebody's head." During the People's rebuttal, the prosecutor argued, without objection: "An innocent person would have called 911 after, quote/unquote, being attacked with a ratchet three times in the chest and another time in the head to report the crime that had just been committed. He would have not only called 911 to report the crime, but would have called 911 for medical help not just for himself, but for [the victim]. That's what an innocent person would have done."
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.