Opinion
H035308
07-12-2011
THE PEOPLE, Plaintiff and Respondent, v. GEORGE ANTHONY OLMOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC946567)
1. INTRODUCTION
At trial there was evidence that defendant George Anthony Olmos slashed the face of a stranger, Thuy Ly, with a sharp object in the parking lot of a convenience store after he had a verbal confrontation with her inside the store. After a trial, a jury convicted defendant of aggravated mayhem (count 1; Pen. Code, § 205) and assault with a deadly weapon involving personal use of a dangerous or deadly weapon and personal infliction of great bodily injury (count 2; §§ 245, subd. (a)(1), 1192.7, 1203, subd. (e)(3), 12022.7, subd. (a)). In the jurys absence, the trial court found that defendant had a prior conviction for assault involving personal use of a knife, a strike offense for which he was sentenced in 2008 to two years in prison. (§§ 667, 667.5, 1170.12.) After denying defendants request to strike the prior strike, the trial court sentenced defendant to an indeterminate term of life in prison for the aggravated mayhem, doubling the minimum parole eligibility date to 14 years due to the prior strike and adding five years to that minimum date due to the prior serious felony. The court stayed the upper term sentence on count two pursuant to section 654.
Unspecified section references are to the Penal Code.
The central issue on appeal, as it was at trial, is whether the circumstances of this case, involving one swing of defendants arm, amount to substantial evidence of the specific intent to maim that is an element of aggravated mayhem. Appellate counsel also asserts that the trial court erred in refusing defendants requested instructions describing the evidence needed to prove specific intent. Defendant has also submitted on his own behalf what he would like us to consider as a supplemental brief. For the reasons stated below, we will affirm the judgment.
2. TRIAL PROCEEDINGS
A. Trial Evidence
Defendant did not testify at trial.
On April 19, 2009, Thuy Ly drove to a 7-Eleven store in San Jose to get cigarettes for a friend. According to one surveillance video, Ly entered the store at 11:14 p.m and defendant entered the store about 30 seconds later. According to the cashier that night, Freddy Lopez, Ly and defendant were both regular customers.
Ramona Peraza testified that she gave a ride that night to defendant, who was her lover, and a couple of his friends. Earlier in the day defendant had been drinking beer. She drove him to the convenience store that night so that he could buy a cigar to make a blunt by replacing the tobacco with marijuana. He asked her for money and she gave him the change in her ashtray, not enough to buy a one-dollar cigar.
According to Ly, defendant, a stranger, approached her in a store aisle and asked her for a dollar. Because his tone was demanding, she turned him down, saying she did not have a dollar. She got in line for the register, and defendant followed right behind her, close enough that their arms touched. A surveillance video showed how close he was standing. He did not say anything more to her inside the store.
Ly testified that she asked defendant to step back because it could be sexual harassment. According to Lopez, Ly said, " Back off. Im a lesbian. I can take you. " He ignored her. She paid for her cigarettes and left the store, heading to the right toward her car.
Defendant attempted to buy a one-dollar cigar, but he did not have enough change, so Lopez refused to sell him one. According to a surveillance video, defendant left the store about a half-minute after Ly did.
There is no surveillance video of what happened in the parking lot. According to Ly, defendant walked up to her as she was unlocking her car. He said something in an angry tone about " talking all that shit. " He puffed out his chest and spread his arms. She felt he was trying to scare her. She described herself as five feet four inches tall and defendant as a few inches taller.
Ly did not notice if he had anything in his hands. According to her, he swung his right arm at her face. She took a step back and hit her car with her right hand. His hand did not contact her face. Her left cheek felt wet. She realized later she was cut and bleeding. Defendant swung at her once.
According to Peraza, she saw defendant leave the store and she momentarily looked away. When she looked back, it looked like he was fighting with another man. She saw flying hands and the other man fighting back. Peraza told the other occupants of her car that he was fighting and they all got out of the car.
According to Ly, the female driver called out defendants name and told him to get into the car. He walked away from Ly without haste and got into the passengers side of the car. She never saw what was in his hand.
According to Peraza, defendant returned to the car and said either " I just shanked somebody "or " somebody got shanked; lets go. " He said he would drive and got into the drivers seat.
According to San Jose Police Detective Mark Riles, in his first interview with Peraza, she denied being at the 7-Eleven. The father of her child, John Angel, arranged a second interview by Riles when Peraza was in the Elmwood jail. At the second interview, Peraza quoted defendant as saying " I just shanked somebody. " During that interview, Peraza indicated to Riles that Angel was pressuring her to tell the truth and implicate defendant, with whom she had cheated on Angel.
Inside the store, Lopez and another employee were engaged in a conversation when Lopez saw that Ly was bleeding in the parking lot. A store employee brought her napkins for the bleeding.
As Perazas car was leaving the lot, it collided with a car driven by Janelle Ho that was entering the lot. Perazas car kept on going, and Ho followed it until her passenger could read the license plate.
Ly, who was in shock, first returned in her car to a friends house. Her friends eventually convinced her to go to the hospital.
Ho returned to the 7-Eleven to find Lopez making a 911 call to report the slashing and the collision. A San Jose police officer responded to the report at 11:28 p.m. and spoke with Lopez.
Dr. Matthew Bloom sutured Lys wound at the hospital. It was about 16 centimeters long and two centimeters deep at the deepest part. There was a skin flap of about two centimeters. One of the muscles was cut that controls part of the smile. Bloom stitched the muscle back together and used internal stitches and over 30 external stitches to close the wound. Photos of Lys wound from that night were in evidence.
According to Ly, her left cheek was cut from her earlobe to her mouth. Her face is numb in that area. She is depressed and scared as a result of the attack and people look at her differently with the scar. Ly reported that the hearing in her left ear comes and goes, although, according to Dr. Bloom, the cut should not have affected Lys hearing.
Defendant admitted to Detective Riles he was in the convenience store that night, as shown in photographs made from a store surveillance video, but he denied knowing anything about an incident in the parking lot.
At the close of the prosecutions case, defense counsel made a motion for acquittal (§ 1118.1) based on insufficiency of the evidence of the specific intent required for aggravated mayhem. The court denied the motion, finding: "This was inferentially a controlled and directed attack on her face. It supports a reasonable inference of an intent to disfigure." "[T]heres sufficient evidence to sustain a conviction on appeal."
B. Closing Arguments
The prosecutor described for the jury the elements of aggravated mayhem using the words of CALJIC No. 9.32 (quotedpost in pt. 2C). She pointed out that the difference between aggravated mayhem and the lesser included offense of mayhem "is that number two element, that the defendant inflicted the injury and he did so with the specific intent to permanently disfigure Ms. Ly." The prosecutor noted that there was no evidence of the kind of sharp instrument defendant was holding. She argued that the case involved aggravated mayhem because defendant was angry with Ly based on their encounter in the store. The method he selected for attacking her was to use a sharp object to cut her face, when he could have stabbed her elsewhere. He "could have done anything with that knife, but what he chose to do was to mark her, and he put a mark on her that is going to be there for the rest of her life. As long as Ms. Ly lives, shes going to have to look in the mirror and see this on her face. [¶] The defendant, who chose that part of her body to attack, the part of her body that everyone is going to see. He could have attacked her anywhere else, but he went after her face."
Defense counsel argued that, although Ly was "tragically injured," "in order to find the person guilty who caused this injury, you would have to find that they—this person intended to cause the maiming injury, to cause the injury that has now maimed, or disabled, or disfigured Ms. Lys face. There has to be an intent to do that, which means that no matter how brief[,] the person whos doing it has to think []Im going to maim this person. Im going to cause an injury thats going to maim this person.[] Its not just that the result is a maiming injury. Its not just that she ended up with this injury. Its that it was intended to start with. [¶] And the evidence doesnt show that here. The evidence does not support the fact that whoever it was that caused this injury intended to cause a maiming injury."
Defense counsel also argued there was some doubt about defendants identification as Lys attacker. Surveillance video established that defendant was inside the convenience store, but there were questions about the identification of defendant by Ly and Peraza as Lys attacker. Right after her surgery that night, in the hospital Ly identified John Angel as her attacker in a photo lineup. Counsel asserted that the video ended showing Ly leaving the store walking to the right and defendant leaving the store walking to the left. She questioned what the surveillance video showed next that was not introduced into evidence. Peraza admitted she was under tremendous pressure by her ex-boyfriend to send defendant to prison for life.
In rebuttal, the prosecutor disagreed that the video showed defendant leaving the store to the left.
C. Jury Instructions
Defendant asked the court to give two special instructions based on People v. Ferrell (1990) 218 Cal.App.3d 828 (Ferrell). Requested instruction "A" was: "Aggravated mayhem requires the specific intent to cause the maiming injury. Evidence that shows no more than an indiscriminate attack is insufficient to prove the required specific intent." Requested instruction "B" was: "Specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately."
These instructions, as they were submitted in writing, should appear in the clerks transcript on appeal (Cal. Rules of Court, rule 8.320(b)(4)), but they do not, even though the trial court assured defense counsel that they would, while discouraging her from reading them into the record. Appellants counsel has helpfully attached the proposed instructions to his brief, and the Attorney General does not dispute their accuracy.
The court rejected the requested instructions as "somewhat duplicative of the instructions the courts already going to give and somewhat argumentative. But its principally because I think they are covered by the instructions the courts giv[ing]."
The court instructed the jury in part as follows. "Every person who unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being is guilty of the crime of aggravated mayhem in violation of Penal Code section 205.
"In order to prove this crime, each of the following elements must be proved:
"One, one person intentionally and unlawfully caused another person to sustain permanent disability or disfigurement;
"Two, the person who inflicted the injury did so with the specific intent permanently to disable or disfigure;
"Three, the person who inflicted the injury did so maliciously, that is, with an unlawful intent to vex, annoy, or injure another person;
"And four, that person engaged in the conduct under circumstances which demonstrated his extreme indifference to the physical or psychological well-being of the person subsequently injured." (CALJIC No. 9.32.)
The jury was also instructed that a finding of guilt cannot be based on circumstantial evidence unless the evidence is "consistent with the theory that the defendant is guilty of a crime" and cannot reasonably be interpreted to point to the defendants innocence. (CALJIC No. 2.01.)
"Specifically as to count one, the specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged in count one unless the proved circumstances are not only, one, consistent with the theory that the defendant had the required specific intent or mental state, but, two, cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to any specific intent or mental state permits two reasonable interpretations, one of which points to the existence of the specific intent or mental state and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." (CALJIC No. 2.02.)
D. Motion For New Trial
Defense counsel made an unsuccessful motion for new trial and to modify the verdict, contending, "[a]ssuming there was credible evidence to support the charge that he assaulted Thuy Ly, the weight of the evidence does not support a claim that he committed the crime of aggravated mayhem, nor that he possessed the requisite intent and malice to support a conviction for this crime." The written motion quoted the proposed instructions as argument. The court concluded that evidence showed defendant "did have the intent to disfigure."
3. SUFFICIENCY OF THE EVIDENCE OF SPECIFIC INTENT TO MAIM
On appeal defendant asserts there was insufficient evidence to support the finding that he specifically intended to disfigure Thuy Ly.
" On appeal, the test of legal sufficiency is whether there is substantial evidence, i.e., evidence from which a reasonable trier of fact could conclude that the prosecution sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶] While the appellate court must determine that the supporting evidence is reasonable, inherently credible, and of solid value, the court must review the evidence in the light most favorable to the prosecution, and must presume every fact the jury could reasonably have deduced from the evidence. [Citations.] Issues of witness credibility are for the jury. (People v. Boyer (2006) 38 Cal.4th 412, 479-480.)" (People v. Assad (2010) 189 Cal.App.4th 187, 194 (Assad).)
" The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. " If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. " [Citations.] (People v. Bean (1988) 46 Cal.3d 919, 932-933.)" (People v. Park (2003) 112 Cal.App.4th 61, 68 (Park).)
The first opinion to consider section 205 determined from the language of the statute that "the specific intent to cause the maiming injury is an element of aggravated mayhem." (Ferrell, supra, 218 Cal.App.3d 828, 833.) Considering a challenge to the sufficiency of the evidence of specific intent, the court observed: " Evidence of a defendants state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.] [Citation.] A jury may infer a defendants specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors." (Ferrell, supra, 218 Cal.App.3d at p. 834.)
Ferrell went on to state: "Despite the differences in the statutory language, . . . the standards articulated in cases involving felony-murder mayhem are instructive here. Evidence which shows no more than an indiscriminate attack is insufficient to prove the specific intent to commit mayhem under section 203. [Citations.] Furthermore, specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately." (Ferrell, supra, 218 Cal.App.3d at p. 835.)
Ferrell had no trouble finding sufficient evidence of specific intent when one woman went to another womans apartment with a handgun, asked for her by name, said she was sent by a friend from jail, threatened to kill her if she moved, and shot the woman once in the neck from two feet away after shooting a man in the leg. (Id. at pp. 831-832.) The court noted that the defendant fired only one shot into the victims neck at close range. The court commented that the defendant "was apparently satisfied with the result of her single shot. It takes no special expertise to know that a shot in the neck from close range, if not fatal, is highly likely to disable permanently. Appellants shooting of Perreira was not an indiscriminate, random attack on her body; instead, the shooting was directed and controlled. From all this evidence, the jury could reasonably have inferred that appellant intended both to kill Perreira, and, if she did not die, to disable her permanently." (Id. at pp. 835-836.)
Appellate courts have found evidence of specific intent to maim substantial enough to support a conviction under section 205 in various circumstances. (Park, supra, 112 Cal.App.4th 61, 69-72 [after a staring contest between two groups in a restaurant and a verbal threat, the defendant located a steel knife sharpener in the restaurant, followed the other group outside, verbally challenged them, and then swung the sharpener over head toward the victims head, hitting him once in the mouth and breaking eight teeth after the victim warded off three or four blows with his arm]; People v. Quintero (2006) 135 Cal.App.4th 1152, 1163 [a passenger slashed the drivers face many times with a knife, holding his head by the hair, cutting the mans hands when he tried to cover his face, and stopping once he had severely maimed the face]; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831-832 [a man attacked another man who had just woken up in bed by holding his chest and slashing his face with a knife in a manner suggesting an intent to disfigure his face]; Assad, supra, 189 Cal.App.4th 187, 195 [father tied his 12-year-old son to a bed and struck his torso and legs with a garden hose with a metal fitting on one end].)
People v. Lee (1990) 220 Cal.App.3d 320 is the only published case to reverse a conviction under section 205 due to insufficiency of the evidence. The court noted the defendant used no weapon but his fists and feet on an older male neighbor. "Defendant punched his victim in the face three times. Defendant also kicked his victim at least twice somewhere on his body, but there was no evidence that the kicks were to his head. The evidence shows no more than a sudden, indiscriminate, and unfocused battering of Chus body." (Id. at p. 326.)
Here, defendant contrasts the single thrust and slash of Lys face with knife attacks involving multiple slashes of a restrained victims face. Defendant asserts there was no "calculated, controlled application of violence," but rather "an angry outburst of violence, accompanied by his angry statement."
Indeed, it is difficult to reconcile an attack involving multiple slashes directed solely at a persons face with an intent other than to disfigure. While a sustained and focused attack may provide ample evidence of the specific intent to disfigure, the same intent could be accomplished by one successful well-aimed slash. We do not interpret existing precedent as requiring a sustained attack. Surely it would not be necessary to acquit a defendant who was able to land only one maiming blow after announcing an intent to disfigure. Nor should an announced intent be required when the circumstantial evidence of a single maiming thrust, including the resulting disfigurement, reflects the attackers intent.
Ly described defendant walking up to her in the parking lot with threatening body language and saying something about her "talking all that shit" inside the store. He was apparently armed with a sharp instrument that he might have used on any part of her body. We conclude that his selection of her face as a target of a successful slashing attack is substantial evidence of a specific intent to maim. The fact that he swung only once suggests that his anger was under control. His attack was not indiscriminate and furious, but deliberate. Having disfigured her with one successful slash, he had no need to swing again. He had accomplished the objective of his specific intent to mark and disfigure her.
4. THE REFUSED INSTRUCTIONS
A. Entitlement to Pinpoint Instructions Under State Law
In his opening brief, defendant challenges as an error under state law the courts refusal to give the two special instructions he requested based on the language of Ferrell. The requested instructions emphasize that evidence showing only a disfiguring injury and an indiscriminate attack is not enough to establish the specific intent to maim.
People v. Sears (1970) 2 Cal.3d 180 held that a criminal defendant has a right, on request, to instructions directing the jurys attention to evidence that might engender a reasonable doubt, and to instructions that "relat[e] particular facts to any legal issue." (Id. at p. 190.) Such an instruction "may, in appropriate circumstances, relate the reasonable doubt standard for proof of guilt to particular elements of the crime charged [citation] or may pinpoint the crux of a defendants case, such as mistaken identification or alibi." (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.)
On the other hand, "a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing (People v. Gurule (2002) 28 Cal.4th 557, 659), or if it is not supported by substantial evidence (People v. Bolden [(2002) 29 Cal.4th 515], at p. 558)." (People v. Moon (2005) 37 Cal.4th 1, 30 (Moon).) An instruction that directs the jury to consider certain evidence is properly refused as argumentative. A proper instruction does not pinpoint specific evidence as such, but the theory of the defendants case. (People v. Ledesma (2006) 39 Cal.4th 641, 720.)
Defense counsel argued to the jury in part that there was insufficient evidence of the specific intent to maim. The jury received standardized instructions that an element of the crime of aggravated mayhem is "the specific intent permanently to disable or disfigure" (CALJIC No. 9.32) and that it could "not find the defendant guilty of the crime charged in count one unless the proved circumstances are not only, one, consistent with the theory that the defendant had the required specific intent or mental state, but, two, cannot be reconciled with any other rational conclusion" (CALJIC No. 2.02).
The first sentence of requested instruction "A" merely restated the specific intent definition in different words and was properly refused as duplicative of CALJIC No. 9.32. (Moon, supra, 37 Cal.4th at p. 31.) Insofar as requested instruction "A" refers to an indiscriminate attack, there was no evidence, substantial or otherwise, of an indiscriminate attack on Ly and defendant did not argue to the jury that the attack on Ly was indiscriminate. That part of the request was properly refused as it reflected neither the defense theory nor the evidence. (Cf. People v. Hartsch (2010) 49 Cal.4th 472, 501502.)
For ease of reference, we repeat requested instruction "A." "Aggravated mayhem requires the specific intent to cause the maiming injury. Evidence that shows no more than an indiscriminate attack is insufficient to prove the required specific intent."
With regard to requested instruction "B", we question whether it is an accurate statement of the law. (Cf. Moon, supra, 37 Cal.4th at p. 31 [case law regarding sufficiency of evidence on appeal of premeditation and deliberation would be an improper jury instruction].) "Language in an appellate opinion which may be a good statement of law or the reasoning of the appellate court does not necessarily make a good jury instruction." (People v. Adams (1987) 196 Cal.App.3d 201, 204-205; cf. People v. Colantuono (1994) 7 Cal.4th 206, 221, fn. 13.) As we have explained above, the kind of injury inflicted alone might well establish an intent to disfigure sufficient to sustain a conviction.
For ease of reference, we repeat requested instruction "B." "Specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately."
We also believe it would be argumentative to instruct the jury essentially to discount the resulting injury as one of the circumstances probative of the attackers intent. "It is improper for an instruction to indicate an opinion favorable to the defendant regarding the effect of the evidence." (People v. Hartsch, supra, 49 Cal.4th at p. 504.) The effect of certain facts on identified theories is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate. (People v. Roberts (1992) 2 Cal.4th 271, 314.)
Indeed, defense counsel did argue to the jury that evidence of a person being maimed was not enough to establish the specific intent involved. Defendant also quoted this language as argument in his motion for a new trial. Requested instruction "B" was properly refused as argumentative. (Cf. Moon, supra, 37 Cal.4th at p. 32.)
Defendant contends the Attorney General has implicitly conceded the requested instructions were not argumentative by failing to defend the trial courts ruling on this ground. Whether or not the Attorney General concedes this point, we are not required to accept a concession. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.)
We conclude the instructions given adequately emphasized the kind of circumstantial evidence needed to establish the specific intent to disfigure and that the trial court did not err in refusing the requested instructions as both duplicative and argumentative.
B. Entitlement to Pinpoint Instructions Under Due Process Clause
In a supplemental opening brief filed after appellants reply brief, defendant contends that "[t]he courts refusal to give[] the special instructions requested by the defense violated Olmos[s] fundamental due process right to present a complete defense to the charges." The Attorney General concedes that defendant may raise this argument for the first time on appeal.
As in People v. Rogers (2006) 39 Cal.4th 826, 872, "[d]efendant relies on cases in which federal courts have held that a trial courts failure to give a requested instruction (whether on a lesser included offense, or on some other subject) embodying the defense theory of the case and around which the defendant had built his or her defense, violated the defendants due process right to present a complete defense. (Clark v. Brown (9th Cir. 2006) 442 F.3d 708, 713-718 [instruction on felony-murder special circumstance]; Conde v. Henry (9th Cir. 2000) 198 F.3d 734, 739-740 [instruction on simple kidnapping as lesser included offense of kidnapping for robbery]; United States v. Monger (6th Cir. 1999) 185 F.3d 574, 576-577 [instruction on lesser included offense]; see also Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1098-1099 [instruction on defense of entrapment].)"
To the extent that the constitutional right to present a defense includes the right to instructions on a criminal defendants theory of the case, a defendant is not entitled to an instruction in his or her own words if other instructions given adequately cover that defense theory. (Cf. U. S. v. Romm (9th Cir. 2006) 455 F.3d 990, 1002.) We have already concluded above that the trial courts instructions accurately and adequately described the quality of circumstantial evidence needed to prove beyond a reasonable doubt the specific intent to maim.
Defendant has presented no authority that the right to present a defense includes the right to argue the defense through jury instructions. (Cf. People v. Mincey (1992) 2 Cal.4th 408, 437-438.) The instructions given did not preclude defendant from arguing to the jury that there was insufficient evidence of a specific intent to disfigure and that more had to be shown than the result being a maiming injury. Defendant, in fact, made that argument. Defendants right to present that defense was in no way compromised by the instructions given.
5. DEFENDANTS SUPPLEMENT
On December 21, 2010, defendant filed a formal petition for writ of habeas corpus in this court (H036403) alleging that his appointed appellate counsel is incompetent because, as we understand it, he has failed to challenge the sufficiency of the identification evidence on appeal. On January 11, 2011, this court summarily denied that petition.
On February 7, 2011, this court received a letter from appellate counsel dated December 20, 2010, submitting a document, apparently handwritten by defendant, asking us to consider the sufficiency of the evidence against him and contending that his appellate counsel is ineffective. He requests either appointment of a new attorney or the right to represent himself. Appellate counsel characterizes the document as "a pro per petition for writ of habeas corpus." Defendants handwritten submittal and the previously filed petition appear to be virtually identical, apart from introductory and closing paragraphs.
We disagree with counsel that this letter amounts to a habeas petition. It is lacking a number of the formalities required by statute (§ 1474) and court rule (Cal. Rules of Court, rule 8.380). It may be an attempt by defendant to file a supplemental brief or a motion to replace counsel.
There is no constitutional right to self-representation in a criminal appeal or in a collateral habeas corpus proceeding. (In re Barnett (2003) 31 Cal.4th 466, 473, 475-476.) When an inmate has appointed counsel, "all appellate motions and briefs must be prepared and filed by counsel and may not be accepted pro se." (Id. at p. 473.) The only pro se motions an appellate court will consider are motions "regarding representation" (ibid.)and those "reflecting matters falling outside the scope of appointed counsels representation." (Id. at p. 479.)
Defendants submittal may be considered a motion regarding representation. For the most part, defendant criticizes appellate counsel for not emphasizing trial evidence tending to cast doubt on the identification by Ly and Peraza. He also disputes that the hit and run collision took place as described by Janelle Ho. He mentions evidence outside the record, citing an alleged statement by Ho to a defense investigator and his own statements about what he said to Peraza before they drove off.
As we have already explained, an appellate court reviewing the sufficiency of the evidence is required to view the evidence and draw inferences in support of the verdict and to defer to the jurys credibility determinations. We see no reason to fault appellate counsel for not repeating credibility arguments that trial counsel made unsuccessfully, particularly in light of defendants admission that he does appear in the store surveillance videos. Defendants handwritten submittal affords him no basis for relief on appeal.
6. DISPOSITION
The judgment is affirmed.
GROVER, J. WE CONCUR: ELIA, ACTING P.J. MIHARA, J.
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.