P. v. Kim
Filed 7/9/12 P. v. Kim
CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
CHAYYA KIM,
Defendant and Appellant.
2d
Crim. No. B235148
(Super.
Ct. No. 2011007631)
(Ventura County)
Chayya
Kim appeals the judgment entered after a jury convicted him of assault with a
deadly weapon and force likely to cause great bodily injury (Pen. Code,
(a)(1)). The trial court sentenced him
to four years in state prison. Appellant contends (1) the court erred in
denying his request to instruct the jury on simple assault; (2) the court
abused its discretion in admitting evidence of his prior conviction for
purposes of impeachment; and (3) the
former statutory limitation on
presentence custody credits for
inmates convicted of serious felonies violates equal protection. We affirm.
STATEMENT OF FACTS
On the night of January 21, 2001, Mark Jones was working as the head of security at the Borderline
Bar and Grill (Borderline) in Thousand
Oaks. Approximately 350 people came to Borderline
that night to watch several hip-hop acts perform. At approximately 1:45 a.m., Jones
and other security employees began telling people that it was closing
time. No one wanted to leave, however,
and "things started getting a little bit crazy." Jones approached two men who were blocking
the stairwell to the front door and told them it was time to leave. After receiving no response, Jones tapped one
of the men, later identified as appellant, on the shoulder. Jones, who was wearing a red shirt with the
word "security" on it, identified himself to appellant as security
and stated that the bar was closing.
When Jones reiterated that it was time to leave, appellant turned
around, flung his arm at Jones, and said, "if you don't take your hands
off me, I'm fucking gonna kill you."
The man
with appellant told Jones that he would get appellant to leave, and Jones
replied that they had two minutes to exit the premises. When appellant reached the front counter, he
picked up a beer bottle that was sitting on it and threw it into the crowd of
people below. As Jones headed up the
stairs towards appellant, he saw him pick up a glass from the front counter. Jones grabbed appellant's arm and tried to
take the glass from him. Jones also
attempted to place appellant in a headlock and move him away from the crowd. After Jones was unable to retrieve the glass,
he tried to pin appellant up against the wall.
Appellant again told Jones, "if [you] don't let [me] go, [I'll]
fucking kill [you.]"
Appellant
continued yelling at Jones to let him go.
When Jones did not do so, appellant hit him over the head with the
glass, causing it to shatter. Jones
collapsed to the ground and grabbed the top of his head as appellant started
punching and kicking him. Jones also saw
appellant swinging another object toward his
punch and kick him.
Borderline
employees Matthew Tilley and Jeff Rock both saw appellant hit Jones over the
head with the glass.
name="_ftnref2" title="">[2] Tilley identified the type
of glass appellant used as "extremely thick" and noted that he had
"seen people drop these on the floor, and they're not breaking." Rock, who was working as a security employee
that night, intervened after he observed the attack and placed appellant in a
chokehold. When appellant's companion
placed his hand on Rock, Rock released the chokehold and appellant ran away. Jones was transported to the hospital for
required stapling and stitches.
Appellant
testified in his defense. He was one of
the acts who performed at Borderline on the night of the incident. He performed sometime around midnight and his set lasted approximately 15 minutes. He consumed one beer prior to his performance
and one mixed cocktail afterward. As he
was walking around and socializing, he heard a lot of commotion near the front
entrance and went to assist a fellow performer who was trying to get the crowd
to calm down. It seemed as if a fight
was about to break out, so he decided to get his pregnant sister-in-law away
from the crowd. As he was doing so, someone
threw a glass that hit his sister-in-law in the back. Appellant pushed her aside, ran over to see
who had thrown the glass, and reached for a beer bottle. He tried to throw the bottle at the crowd,
but it slipped out of his hand. He then
picked up a glass and was about to throw it when Jones grabbed him and placed
him in a headlock, which caused the glass to slip out of his hand. Appellant grabbed Jones by the arm, then
heard the sound of shattering glass as Jones loosened his grasp. Appellant turned around and punched Jones
three or four times before Rock pulled him away. It was at that point that appellant realized
he was in an altercation with security.
Other people surrounded Jones and began kicking and punching him.
When
appellant was interviewed by the police following his arrest, he denied being
involved in any altercation at Borderline on the night in question. In his testimony at trial, he claimed he had
denied any knowledge of the incident because he was scared and wanted an attorney. When appellant was interviewed, however, he
was fully advised of his rights yet never requested an attorney.
appellant also admitted he has a prior felony conviction for having a concealed
firearm in his vehicle, in violation of former section 12025, subdivision
(a)(1), now section 25400, subdivision (a)(1).
DISCUSSION
I.
Failure to Instruct on Simple Assault
Appellant
contends the court erred in denying his request to instruct the jury on simple
assault as a lesser included offense of the charged crime of assault with a
deadly weapon and force likely to create great bodily injury. We conclude that the instruction was properly
refused.
"A
trial court must instruct on a lesser included offense if substantial evidence
exists indicating that the defendant is guilty only of the lesser offense. [Citation.]" (People
v. Manriquez (2005) 37 Cal.4th 547, 584.)
"An offense is necessarily included in a greater offense when, for
present purposes, under the statutory definition of the offenses the greater
offense cannot be committed without necessarily committing the lesser. [Citations.]" (People
v. Basuta (2001) 94 Cal.App.4th 370, 392.)
A lesser included instruction need not be given, however, "[w]hen
there is no evidence the offense committed was less than that charged . . .
." (People v. Booker (2011) 51 Cal.4th 141, 181.) In other words, instructions on a lesser
included offense must be given only when there is "evidence that, if
accepted by the trier of fact, would absolve the defendant of guilt of the
greater offense but not of the lesser.
[Citations.]" (
745.) On appeal, we apply a de novo
standard of review and independently determine whether an instruction on the
lesser included offense was properly refused.
(Manriquez, supra, at p. 584.)
Simple
assault is defined as "an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another." (§ 240.)
Simple assault is a lesser included offense of aggravated assault, which
for present purposes includes both assault with a deadly weapon and assault
with force likely to produce great bodily injury. (§ 245; People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
An
object that is not deadly per se, such as a drinking glass, nevertheless
qualifies as a deadly weapon for purposes of section 245 when it is "used
in such a manner as to be capable of producing and likely to produce[] death or
great bodily injury." (
1023, 1028-1029.) Appellant was charged
with and found guilty of violating section 245 on the theory that he hit Jones
over the head with a bar glass. He does
not dispute that the evidence is sufficient to support the jury's verdict. (See, e.g., People v. McWilliams (1948) 87 Cal.App.2d 550, 551, disapproved on
other grounds in In re Wright (1967)
65 Cal.2d 650, 654-655, fn. 3 [defendant convicted of assault with a deadly
weapon for "throwing a heavy water glass which struck the [victim] in the
face"].) He claims, however, that
he was entitled to an instruction on the lesser included offense of simple
assault because the testimony offered to prove the charge "was
contradictory and confusing."
According to appellant, the jury "could have found that, given the
conflicting testimony and the chaos surrounding the altercation, doubt remained
as to whether appellant was the person who hit Jones with the glass." He further contends that the evidence of his
threat to kill Jones, considered in conjunction with the other evidence, "could have led the
jury to conclude that [he] was guilty of simple assault." In his reply brief, he reiterates that
"substantial evidence was introduced which established that appellant
engaged in a physical struggle with Jones while verbally threatening him and
thereby committed at least the lesser included offense of simple
assault."
We are
not persuaded. Appellant was charged
with committing aggravated assault based solely on the allegation that he had
hit Jones over the head with a bar glass.
As the court correctly concluded, giving the simple assault instruction
would "be confusing to the jury" in this context. The court explained: "Although assault is a lesser-included
offense, or can be a lesser-included offense, I don't find that it is under the
circumstances of this case given the defendant's testimony that he did not,
even with general criminal intent, strike the security guard with the
glass. And since the People are not
pursuing a further action, I'm not going to give simple assault. [¶] Now, if that changes by way of
argument and you'd like me to reconsider if [the prosecutor] opens the door or
the defense opens the door, and you want to readdress the issue of whether or not
the jury should be instructed on the lesser, I will consider that. But assuming that everyone argues that what
we're talking about is a hit on the head with the glass object, causing Mr.
Jones to fall to the ground, that's the extent of the criminal act that has
been charged against the defendant. [¶] With that understanding, coupled with the
defendant's testimony, I deny the request for a lesser included of simple
assault."
The
court's reasoning is sound. The only
issue presented to the jury was whether appellant intended to hit Jones over
the head with the glass.
name="_ftnref4" title="">[4] If so, he was guilty of
aggravated assault. Whether appellant
may have committed a lesser assault on Jones at some point during the course of
the altercation was irrelevant to the jury's determination. If, as appellant contends, the jury had
reason to entertain a reasonable doubt as to whether he was the individual who
hit Jones with the glass, any such doubt would have resulted in an
acquittal. Although the prosecution
could have brought additional charges against appellant based on what he did
before and after he broke the glass over Jones's head, it elected not to do
so. Because there was no theory
presented to the jury upon which it could have found that appellant was guilty
of only simple assault, instructions on that offense were neither necessary nor
proper. (People v. Booker, supra, 51 Cal.4th at p. 181.)
In any
event, any error in failing to instruct on simple assault was harmless. Although appellant correctly notes the jury
declined to find that he had personally inflicted great bodily injury on Jones
within the meaning of section 12022.7, the jury may have simply concluded, as
appellant himself suggests, that Jones's injuries were incurred at some other
point during the ensuing melee.
the issue is whether it is reasonably probable that the jury would have
convicted appellant of only simple assault had it been instructed to that
effect. (People v. Breverman, supra, 19 Cal.4th at p. 178 [in noncapital
cases, error in failing to instruct on lesser included offenses is reviewed for
prejudice under standard of review enunciated in People v. Watson (1956) 46 Cal.2d 818].) Given the specific and limited theory of
appellant's guilt, and the persuasive evidence offered in support thereof, no
reasonable jury would have so found.
II.
Impeachment Evidence
Appellant
asserts that the court abused its discretion in admitting for impeachment
purposes his prior conviction for having a concealed firearm in a vehicle. He claims the evidence should have been
excluded under Evidence Code section 352 because its probative value was
substantially outweighed by the probability that its admission would create a
substantial danger of undue prejudice.
We disagree.
Evidence
Code sections 788 and 352 "provide discretion to the trial judge to
exclude evidence of prior felony convictions when their probative value on
credibility is outweighed by the risk of undue prejudice." (People
v. Muldrow (1988) 202 Cal.App.3d 636, 644, citing People v. Beagle (1972) 6 Cal.3d 441, 453, superseded by statute on
other grounds, as stated in People v.
Rogers (1985) 173 Cal.App.3d 205, 208.)
In ruling on the admissibility of evidence of prior felony convictions
for purposes of impeachment, the trial court should consider: "(1) Whether
the prior conviction reflects adversely on an individual's honesty or veracity;
(2) the nearness or remoteness in time of a prior conviction; (3) whether the
prior conviction is for the same or substantially similar conduct to the
charged offense; and (4) what the effect will be if the defendant does not
testify out of fear of being prejudiced because of impeachment by prior
convictions." (Muldrow, supra, at p. 644, citing Beagle, supra, at p. 453.)
Such factors, however, need not be rigidly followed. (Beagle,
supra, at p. 453.) We review the
court's ruling in this regard for an abuse of discretion. (People
v. Mendoza (2007) 42 Cal.4th 686, 699.)
The
court did not abuse its discretion in admitting appellant's prior conviction in
accordance with Evidence Code section 352.
Appellant's conviction for having a concealed firearm is a crime of
moral turpitude. (People v. Robinson (2005) 37 Cal.4th 592, 624, 626.) The conviction occurred in 2008, less than
three years prior to the charged crime.
Moreover, the crime of which he was previously convicted bears no
similarity to the instant offense.
Finally, the prior conviction did not prevent appellant from
testifying.
Although
appellant argues that his prior conviction showed his predisposition for
violence, the jury was instructed that the prior conviction could only be used
for purposes of assessing appellant's credibility. We presume the jury followed this
instruction. (People v. Osband (1996) 13 Cal.4th 622, 714.) As the People note, the prosecutor's closing
argument reminded the jury of the limited purpose for which the prior
conviction had been admitted. Because
each of the Beagle factors weighs in
favor of the court's decision to admit the prior conviction, there was no abuse
of discretion. Moreover, any error would
also be harmless. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Castro (1985) 38 Cal.3d 301, 319.)
III.
Presentence Custody Credits
Under
the statutory scheme in effect when appellant was sentenced, inmates required
to register as sex offenders, committed for a serious felony, or with a prior
serious felony conviction were entitled to two days of presentence conduct
credit for every four days in actual custody.
(Former §§ 2933, subd. (e)(3), 4019, subds. (b), (c) &
(f).) Appellant, who was committed for a
serious felony, was accordingly awarded 81 days conduct credit for his 163 days
in actual custody, for a total of 244 days presentence custody credit. If appellant had not been convicted of a
serious felony, he would have been entitled to "one-for-one" conduct
credits, i.e., one day of conduct credit for each day actually served. (Former § 2933, subd. (e)(1).)
Appellant
contends that the limitation on presentence custody credits for inmates such as
him who are convicted of a serious felony amounts to a violation of his state
and federal rights to equal protection. Although courts have consistently rejected
the argument that the disparate application of presentence and postsentence
conduct credit violates equal protection (e.g., People v. DeVore (1990) 218 Cal.App.3d 1316, 1319;
516, 524-526; People v. Ross (1985)
165 Cal.App.3d 368, 377), appellant claims these cases are no longer useful
because they were based on the fact that postsentence conduct credits must be
earned, while presentence credits are automatic. According to appellant, postsentence conduct
credits are now effectively "automatic" as well because they cannot
be denied to prisoners who are willing to work but lack the opportunity to do
so. He asserts that the issue is
therefore governed by People v. Sage
(1980) 26 Cal.3d 498, in which the Supreme Court concluded there was no
rational basis for section 4019 to award presentence conduct credits to
defendants ultimately convicted of misdemeanors, and yet deny them to
defendants ultimately convicted of felonies.
(Id. at pp. 507-508.)
We are
not persuaded. Subdivision (c) of
section 2933 plainly and unequivocally provides that postsentence conduct
credits are "a privilege, not a right" and "must be
earned." Moreover, the cases
finding no equal protection violation in this context are based not only on the
fact that postsentence conduct credits must be earned, but also because
"the state's interest in rehabilitation and the difficulty in establishing
prison-style work programs in county jails justify the disparate application of
presentence and postsentence work credits." (People
v. DeVore, supra, 218 Cal.App.3d at p. 1320, citing People v. Waterman (1986) 42 Cal.3d 565, 570; see also
20, 36 ["the pre and postsentence credit systems serve disparate goals and
target persons who are not similarly situated"].) "The legislative justification for this
differential treatment of prisoners cannot be summarily rejected here, as it
was in Sage, because the factors do
not apply to misdemeanants here." (
custody credit for serious felons does not violate equal protection, appellant
is only entitled to the credits he was actually awarded.
The
judgment is affirmed.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P.J.
YEGAN,
J.
>
Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Linda
L. Currey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.
statutory references are to the Penal Code.
captured on Borderline's surveillance video, and those recordings were played
for the jury. Although the recordings
show appellant pick up the glass, they do not show him using it to assault
Jones.
