P. v. Carrillo

Filed 9/11/06 P. v. Carrillo CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Charles L. Peven, Judge. Affirmed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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Hugo Carrillo appeals from the judgment entered following his conviction by jury of assault with a deadly weapon (a knife) with a finding he personally inflicted great bodily injury in committing the crime. He challenges the constitutionality of CALJIC Nos. 2.01 and 2.02. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Hugo Carrillo (appellant) and Terry Gray had a history of personal animosity and related altercations. On November 7, 2003, Gray was in the front passenger seat of a car driven by Jennifer Esparza that was stopped at a red light. Appellant drove up in the adjacent lane and began exchanging obscenities and hand gestures with Gray. When the light changed, appellant and Esparza turned right and traveled somewhat parallel to each other. Gray repeatedly grabbed and turned the steering wheel, causing appellant to slam on the brakes to avoid colliding with Esparza. Appellant and Gray continued to yell at each other. At one point, Gray saw appellant brandish a knife and heard appellant threaten to kill him. Gray threw a beverage can and sprayed pepper spray at appellant. At a stoplight, appellant left his car, approached Esparza's car and stabbed Gray, wounding him in the chest and leg.

Appellant was charged by amended information with attempted willful, deliberate and premeditated murder, making criminal threats and assault with a deadly weapon (a knife) (Pen. Code, §§ 187, subd. (a), 664, 422, 245, subd. (a)(1)). It was also alleged that appellant had personally used a knife in committing the attempted murder and in making criminal threats and had personally inflicted great bodily injury in committing all offenses (Pen. Code, §§ 12022, subd. (b)(1), 12022.7, subd. (a)).

Among other instructions, the court instructed the jury with CALJIC No. 2.01[1] (weighing circumstantial evidence), CALJIC No. 2.02[2] (evaluating circumstantial evidence) and CALJIC No. 2.90[3] (reasonable doubt).

The jury acquitted appellant of attempted murder and making criminal threats and convicted him of assault with a deadly weapon with a finding of great bodily injury. The trial court sentenced appellant to six years in state prison, consisting of the three-year middle term for the aggravated assault conviction, plus three years for the great bodily injury enhancement.

DISCUSSION

Appellant attacks the propriety of the trial court's instructions pertaining to the prosecution's obligation to prove the elements of the crimes charged beyond a reasonable doubt. He contends CALJIC Nos. 2.01 and 2.02 violated his federal and state constitutional rights to due process, trial by jury, and a reliable verdict in two respects: He argues that the instructions told the jury it â€