Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA360444 Michael M. Johnson, Judge.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MANELLA, J.
Ozzie Paskell appeals the judgment entered following his conviction by jury on one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) The jury found appellant not guilty of count one of the information, attempted murder. (Pen. Code, §§ 187, subd. (a), 664.) The jury found true the allegations that appellant personally used a deadly weapon and caused great bodily injury. (Pen. Code, §§ 12022, subd. (b)(1), 12022.7, subd. (a).) We direct the superior court to correct the abstract of judgment to reflect the total days of custody credit awarded by the trial court, and otherwise affirm. (People v. Mitchell (2001) 26 Cal.4th 181, 185-187 (Mitchell).)
An information was filed on October 5, 2009, charging appellant with one count of attempted murder and alleging that he personally used a deadly weapon and personally inflicted great bodily injury. (Pen. Code, §§ 187, subd. (a); 664; 12022, subd. (b)(1); 12022.7, subd. (a).) Appellant entered a not guilty plea. An amended information was filed in March 2010, adding a count of assault with a deadly weapon, and appellant pled not guilty to both counts. (Pen. Code, § 245, subd. (a)(1).) The case proceeded to a jury trial. The prosecution presented the testimony of the victim, Jorge Leon, a witness, Nancy Nunez, and Los Angeles Police Department Officers Gabriel Medina and Pedro de la Cruz. Appellant testified on his own behalf.
Prosecution Evidence
Leon testified that he was riding his bicycle to a store at Jefferson Boulevard and St. Andrews Street on August 13, 2009, around 9:20 p.m. Maps of the location and photographs of the scene were admitted into evidence. Leon had a walkman with speakers on his bicycle so that he could listen to music while he rode. When he stopped his bicycle near a house, an African American man and Caucasian woman came out of the house and told him his music was too loud. Leon had never seen either of them before. Leon replied that he was on the street, which was not the other person’s property, but he moved a few feet away and stayed there, telling the man he was not on his property and continuing to play his music.
The man told appellant to get Leon away from the area. Appellant told Leon to go away, grabbed his bicycle, and pushed him, so Leon decided to leave.
Leon went home and waited 20 to 30 minutes, then he decided to try going to the store again, assuming that the people had left by then. Leon rode his bicycle back to the area, but on the opposite side of the street. He saw appellant, who came up and hit him in the left eye. Leon got off his bicycle, threw it at appellant, and started fighting with him. Leon felt a stab and started bleeding from his face, chest, and back. He did not know how many times he was stabbed, but his shirt was full of blood, and his face was bleeding. He tried to take the knife away from appellant, and he told appellant he was going to call the police. Appellant started walking away. Leon tried to call 911, but he was dizzy, so he sat on the curb and saw Nunez turn her car around and come to help him. Photographs of Leon’s injuries were admitted into evidence.
Nunez testified that she was driving her car on Jefferson Boulevard near St. Andrews Street late in the evening on August 13, 2009, when she saw someone in the middle of the street, drenched in blood and talking on his cell phone. She drove past, but her daughter, who was in the car with her, told her that no one was stopping to help the person. Nunez turned her car around, and she saw Leon standing in the middle of the street and an African American man, later identified as appellant, standing on the sidewalk. Leon was holding his hand up toward appellant, and it appeared to Nunez that Leon was telling appellant either to back off or to wait.
Nunez heard Leon giving directions to what she assumed was 911, but she noticed that he was giving the wrong directions, so she got out of her car, took his phone, and gave the correct directions to the 911 dispatcher and the paramedic who were on the phone. She saw appellant walking away and heard him saying, “That’s what you had coming to you, ” very loudly. She was instructed by the paramedic on the phone to put pressure on Leon’s wounds, so she asked Leon to remove his shirt, and she saw stab wounds on his face, chest, and behind his shoulder. Leon looked like he was becoming unconscious. Nunez saw a bicycle at the scene.
The recording and transcript of the 911 call made by Leon and Nunez were admitted into evidence, although defense counsel objected to the recording on the basis that it was more prejudicial than probative. The court reasoned that the recording was relevant to the question of Leon’s credibility and to the circumstances of the altercation. The court also reasoned that, although portions of the tape constituted hearsay, the tape was admissible as a spontaneous statement by Leon within the meaning of Evidence Code section 1240.
Leon was taken to the hospital, where he told police officers that he was riding his bicycle to the store when he was attacked suddenly by a black male whom he had never seen before. He did not tell the police about the prior incident involving his music.
Officer Medina responded to the 911 call and saw Leon sitting on the sidewalk with his shirt off and with several stab wounds to his chest, shoulder, and face. He noticed a bicycle and a white baseball cap at the scene. Nunez was helping Leon, who appeared to be in shock.
Officer Medina had difficulty getting information about the incident from Leon because of Leon’s condition, but Leon was able to tell Officer Medina that he was beaten up and stabbed by a black male, approximately six feet tall, wearing a white hat, black shirt, black pants, and dark shoes. Several other witnesses came forward and gave Officer Medina statements. Officer Medina broadcast the description of the suspect and his last known direction of travel. Leon told Officer Medina that the attack was unprovoked and that he had never seen appellant before. He also told Officer Medina that he was unable to understand much of what appellant had said to him because he appeared intoxicated.
Officer Medina asked for additional officers to help canvass the area to look for appellant. Officer de la Cruz was one of the officers who helped search the area. He was told by another officer that the assailant went by the nickname “Cujo.” After searching for 30-40 minutes, he saw appellant walking toward him, so he called out, “Cujo, ” but appellant said that was not his name and told him his name was Ozzie Paskell. Officer de la Cruz told appellant he was only detaining him pending further investigation, but appellant replied, “I know I’m not being detained. I already know I’m being arrested.”
Appellant was taken to the police station. Officer Medina noticed that appellant did not have any injuries that would indicate he had been involved in an assault. Appellant later showed officers two small abrasions on his shoulder and complained of pain in his head due to the fight, so they photographed appellant’s shoulder and head, and the photographs were admitted into evidence at trial. Officer Medina smelled alcohol on appellant’s breath, but he stated that appellant did not appear drunk to him.
After being advised of his Miranda rights, appellant gave a statement to the officers. (Miranda v. Arizona (1966) 384 U.S. 436.) He admitted fighting with Leon and stabbing him, but stated that he acted in self-defense. He also stated that he had been drinking heavily all day. After appellant gave his verbal statement, Officer Medina asked him for a written statement, which appellant dictated to Officer Medina and then initialed. Officer Medina wrote the statement for appellant because appellant did not have his reading glasses; then he read it aloud for appellant to correct any errors.
The written statement was admitted into evidence and provided as follows: “I was walking today to the Food4Less on Western and Jefferson when I saw a Mexican dude arguing with a black man and a white girl. The Mexican dude or Armenian, he looked like a fat Armenian dude, and I had been jumped by the black guy before. I warned the fat Mexican dude to leave before he got jumped by the black dude. Then I left to drop off the band aid at Food4Less. [¶] Then when I was walking back, the fat Armenian dude jumped out from behind a tree and began stomping on me, on my chest, on my head and all up on my back. So he punched me all up and down. [¶] And I grabbed my weapon to protect myself. I keep my knife on me since my boy, the Belizean, got his throat slashed on 35th Street and Western, so I keep it on me for protection. [¶] So when the Armenian dude was stomping on me onto my face, I grabbed my knife and I [stuck] him a few times. I don’t remember how many times. But then I got him real good and he stopped hitting and ran behind the truck. [¶] So I walked away to my friend’s house on Jefferson where I had been drinking heavy all day. Even after I stuck him on the chest, he was still wanting to fight. I thought when I stuck, he would have dropped. [¶] Then I walked to my van across the street, and the police stopped me. When I went to the apartments on the way, I threw away the knife in a sewer. Then I went to my van and I changed my clothes.”
After Officer Medina took the written statement, he was told to reinterview appellant using a digital tape recorder, so he and his partner, Officer Rocha, recorded an interview of appellant, which was played for the jury. A transcript of the interview by Officer Rocha was admitted into evidence.
Defense Evidence
Appellant testified that at the time of the incident he was about 57 years old, was five feet nine inches tall, and weighed 160 pounds. He had been cleaning an apartment for a friend who is on dialysis and had gotten the wrong type of bandages for his friend, so he told his friend he would exchange the bandages at Food4Less.
As appellant walked down Jefferson, he saw Leon arguing with someone known as “Carwash.” Appellant knew Carwash from the area and let Carwash and his girlfriend keep their belongings in his van, which was where he slept. Carwash told appellant to get Leon away from him before he beat Leon up, so appellant asked Leon to move. Leon moved his bike to the corner and sat down. Appellant testified that he did not notice any music being played.
Carwash jumped over a fence and was going to hit Leon, so appellant told Carwash to stop and told Leon to move further away because Carwash was going to jump him. Carwash was big and had jumped appellant before, so appellant knew he could be violent. Appellant stated that he never pushed Leon.
Appellant then continued to the store, exchanged the bandages, and was walking back when Leon jumped out from behind a tree and started punching him. He stated that there was no bike there during the fight. Appellant tried to get away, but Leon was stronger and would not stop punching him, so appellant got out his knife. He told officers he carried a knife for protection because he had been beaten up before and a friend of his had been killed two weeks earlier. He began “poking” Leon with his knife, trying to make Leon let him go. Leon continued punching him, so appellant stabbed him again until Leon dropped him. Appellant testified that he had been drinking, but he was not drunk.
After Leon said he was going to call the police, appellant left, gave his friend the bandages, and changed his clothes. Appellant acknowledged that he might have said words to the effect of “That’s what you get” because he was angry that Leon had attacked him after he had tried to help him. He threw the knife in the sewer. Appellant saw the police, heard them call him “Cujo, ” and then was detained. He did not leave the area or hide because Leon was not staggering and did not look injured to him when he walked away.
Appellant testified that he was not able to read the written statement taken by Officer Medina because it was too blurry without his glasses, and that he initialed the document where Officer Medina told him to. Appellant told the officers that he had been drinking heavily that day, but he did not feel the effects of the alcohol. He never allowed himself to get drunk because it made him vulnerable on the streets.
Under cross-examination, appellant stated that Leon punched him in the face. He further stated that he never hit Leon in the face and that he is left-handed and therefore could not have hit Leon in his left eye. The prosecutor acknowledged that Leon is heavier than appellant and asked appellant why he did not have any bruises if Leon was punching him all over his body. Appellant replied that he does not bruise easily.
Appellant disputed Nunez’s testimony that Leon was bleeding profusely, stating that Leon never bled, staggered, or appeared injured. He also disputed Leon’s testimony that Leon threw his bicycle at him, stating that “there was no bike on the scene.”
Appellant did not present any other witnesses.
The jury found appellant not guilty of attempted murder and guilty of assault with a deadly weapon and found the special allegations to be true.
The court denied probation, finding that appellant was not suitable for probation. The court stated that the jury’s verdict indicated that although this incident involved a violent attack, there was not evidence beyond a reasonable doubt of an intent to kill.
Appellant was sentenced to the mid term of three years, plus three years for the great bodily injury enhancement pursuant to Penal Code section 12022.7, for a total term of six years. The court explained that although this was an especially violent and unprovoked attack, appellant had a limited record and had been drinking prior to the incident. The court imposed the one-year enhancement for use of a deadly weapon under Penal Code section 12022, subdivision (b)(1), but stayed the enhancement pursuant to Penal Code section 654, because the use of a deadly weapon was an element of the offense of assault with a deadly weapon. The court imposed the requisite fines, fees, and conditions, and gave appellant credit for 266 days of actual custody and 39 days of good time/work time credit for a total of 305 days. Appellant filed a timely notice of appeal.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On October 13, 2010, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider. On October 28, 2010, appellant filed a supplemental brief, claiming ineffective assistance of counsel. Specifically, he claims that his trial counsel failed to do the following: challenge the statements made by witnesses and in medical reports; raise the issue of what a reasonable person would do in his situation; challenge the accuracy of his alcohol level; hire an expert to examine the medical records of his alcohol levels; question a picture of the victim’s injury and reports of the victim’s injury; investigate whether the witness (Nunez) changed her statements; seek discovery of pictures of the area where the incident occurred; investigate his own statements regarding his whereabouts and investigate his character and reputation; let the jury know that he had knee and hip replacements. He asserts that he did not start the incident and that he merely stopped someone else from beating the victim up. He further asserts that he did not lie about the incident but was misquoted. Finally, he seeks a shorter sentence, citing his lack of a criminal record, age, and disabilities.
“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.... If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 391 (Gamache); Strickland v. Washington (1984) 466 U.S. 668, 694.)
The record on appeal sheds no light on why counsel failed to take any of the actions appellant suggests. Appellant has failed to overcome the presumption that counsel’s actions were matters of sound trial strategy. (Gamache, supra, 48 Cal.4th at p. 391.) Moreover, issues such as the statements made by witnesses and in medical reports, what a reasonable person would have done, the extent of Leon’s injuries, and pictures of the area were all brought up at trial and explored through testimony and other evidence, including maps and photographs introduced not only by the prosecution but also by the defense. As for appellant’s claims regarding his alcohol levels, he himself testified that, although he had been drinking heavily, he was not drunk and did not feel any effects of the alcohol.
Appellant’s claim that he did not lie about the incident and was misquoted was a matter for the jury to determine. The record indicates that appellant’s version of the incident was presented clearly and thoroughly to the jury.
There is no question that “‘it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 996.) On appeal, we “ensure the evidence is reasonable, credible, and of solid value, ” and, “if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.) The jury’s verdict is supported by substantial evidence. We therefore defer to the jury’s credibility and factual determinations. Appellant has failed to establish that he suffered prejudice to a probability sufficient to undermine confidence in the outcome. (Gamache, supra, 48 Cal.4th at p. 391.)
We also reject appellant’s claim that he should have received a shorter sentence. The trial court stated on the record its reasons for the sentence imposed. Appellant has failed to show that “‘“the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)The trial court did not abuse its discretion in choosing the sentence.
We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
We note, however, that the abstract of judgment erroneously states that appellant received a total of 302 days of custody credit. The correct total is 305 days. “‘It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.]’... [¶] It is, of course, important that courts correct errors and omissions in abstracts of judgment.” (Mitchell, supra, 26 Cal.4th at p. 185.)
DISPOSITION
The clerk of the superior court is directed to prepare an amended abstract of judgment reflecting that appellant received 305 total days of custody credit and to forward a copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur: WILLHITE, Acting P.J., SUZUKAWA, J.