P. v. Curtis




Filed 5/23/11 P. v. Curtis CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. RYAN NIGEL CURTIS, Defendant and Appellant.

G044264 (Super. Ct. No. 09WF0439) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

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A jury convicted defendant Ryan Nigel Curtis of attempted voluntary manslaughter. The trial court sentenced defendant to 14 years in prison based on this conviction, a great bodily injury enhancement, and a prior strike. We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts and procedural history of the case. Counsel did not argue against his client, but, pursuant to People v. Wende (1979) 25 Cal.3d 436, advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument on his own behalf. That period has passed, and we have received no communication from defendant. We therefore examine the entire record on our own, and, in doing so, provide a brief description of the facts as established by evidence at trial, the procedural history of the case, and the punishment imposed upon defendant. (See People v. Kelly (2006) 40 Cal.4th 106, 123-124.)

FACTS

Randall Padilla was stabbed in the side of his abdomen with a knife. Padilla suffered a four or five inch deep stab wound, which cut his liver, his bile duct, and two veins. Padilla’s back was turned to the assailant and he did not see who stabbed him. But other witnesses identified defendant as the individual who stabbed Padilla. And the parties stipulated that a DNA profile taken from a pack of cigarettes found near the crime scene matched the DNA of defendant.
Padilla and three of his friends had been drinking in several bars in Huntington Beach, California, during the evening of March 15, 2009. They testified they were confronted by two men at about 2:00 a.m. Defendant was one of the men. Padilla and his friends walked away to avoid trouble. But the same two individuals followed them. Defendant again yelled at the victim and his companions. Defendant took a knife from his friend and chased the group before stabbing Padilla. Padilla and his companions denied engaging in a fistfight with defendant or anyone else.
A police officer interviewed defendant one month after the incident, inside the office of the business owned by defendant’s father. Defendant first claimed the last time he had been to Huntington Beach was two months earlier. Defendant then admitted he had been to Huntington Beach more recently to retrieve a cell phone he had lost in a bar, but denied being involved in any altercation. Defendant ultimately admitted having been involved in a fight in Huntington Beach on the night in question. Defendant claimed he was attacked by eight to 10 people. He denied stabbing anyone.
A defense witness testified defendant had a red, swollen, and bruised face, as well as red and bruised knuckles, following the incident. Another witness, who was awakened near the scene of the incident, testified she heard men being loud and rambunctious, and thought they were fighting (but did not see anything). This witness stated to a police officer on the night of the incident that she saw “five to seven guys” fighting with “one guy,” but was too far away to notice details.

PROCEDURAL HISTORY
A November 10, 2009 information accused defendant of two counts: (1) attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a));[1] and (2) aggravated assault with a deadly weapon (§ 245, subd. (a)(1)). The information also alleged great bodily injury enhancements (§ 12022.7, subd. (a)) with regard to both counts, and a personal use of a deadly weapon enhancement with regard to count 1 (§ 12022, subd. (b)(1)). Finally, the information alleged defendant was previously convicted in October 2007 of a serious and violent felony, robbery (§ 211).
Defendant made three pretrial motions. First, defendant moved pursuant to section 995 to dismiss count 1 (or the allegation of premeditation and deliberation) based on an alleged lack of sufficient evidence presented at the preliminary hearing. The court denied the motion.[2] Second, defendant moved to exclude all evidence of his statements to police officers based on the lack of a warning pursuant to Miranda v. Arizona (1966) 384 U.S. 436. The court denied the motion, explaining: “I agree . . . that [defendant] was detained. The obligation to advise your client of his Miranda rights does not rise at the detention stage. What’s required is custodial interrogation. And I don’t find that . . . .” (Italics added.) Third, defendant apparently moved to exclude photographs of the victim depicting his injuries (there is a brief in the record opposing such motion in limine). The court denied this motion (at least in part), as a photo of the victim’s stab wounds was introduced into evidence. The court granted the People’s pretrial motion to impeach defendant “with his prior 2007 robbery case, should he choose to testify.”
Defense counsel conceded during his opening statement that defendant stabbed Padilla. The primary defense theories at trial were that defendant did not intend to kill the victim and defendant acted in self-defense. The jury was instructed with several instructions pertaining to the right to self-defense (CALCRIM Nos. 3470 & 3471), as well as CALCRIM No. 604, which pertains to the reduction of attempted murder to attempted voluntary manslaughter based on “imperfect self-defense.” It does not appear from the record that any jury instructions requested by defendant were refused by the court. Defendant did not testify.
The jury submitted one written question to the court during deliberations: “PLEASE EXPLAIN, ‘ATTEMPTED VOLUNTARY MANSLAUGHTER,’ SPECIFICALLY, WHAT IS ‘IMPERFECT SELF DEFENSE’‌” The court provided the following written response: “PLEASE SEE INSTRUCTION NO. 604 WHICH SETS FORTH THE FIVE REQUIREMENTS OF ‘IMPERFECT SELF-DEFENSE.’”
The jury convicted defendant on count 1 of the lesser included offense of attempted voluntary manslaughter (§§ 192, 664) and of count 2. The jury found the various alleged enhancements to be true. Defendant then admitted his prior robbery conviction.
The court sentenced defendant to a term of 14 years in state prison, with 598 total days of credit for time served (520 actual, 78 conduct) pursuant to section 2933.1. The sentence consisted of the following: (1) a six-year sentence for attempted voluntary manslaughter;[3] (2) a three-year consecutive sentence for the great bodily injury enhancement to count 1 (§ 12022.7, subd. (a)); and (3) a five-year consecutive sentence for defendant’s prior robbery conviction (§ 667, subd. (a)(1)). As to the one year enhancement on count one for use of a deadly weapon (§ 12022, subd. (b)(1)), the court imposed sentence but indicated punishment was stricken. The court imposed sentence on count 2, but stayed execution of sentence pursuant to section 654.

DISCUSSION

We have examined the entire record and found no arguable issue. There is substantial evidence supporting the jury’s findings of guilt and true findings with regard to the enhancements. The jury instructions and the court’s rulings with regard to the parties’ various motions were appropriate. And defendant was properly sentenced under the Penal Code. Even though the three year enhancement mandated by section 12022.7, subdivision (g), does not apply to “murder or manslaughter” convictions, it does apply to attempted voluntary manslaughter convictions. (People v. Lewis (1993) 21 Cal.App.4th 243, 245-246; see also In re A.G. (2011) 193 Cal.App.4th 791, 799, fn. 7.)

DISPOSITION

The judgment is affirmed.



IKOLA, J.

WE CONCUR:



O’LEARY, ACTING P. J.



ARONSON, J.

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