Filed 4/22/13 P. v. Lemus CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID SANTILLAN
LEMUS,
Defendant and Appellant.
G047118
(Super. Ct. No. 10WF0903)
O
P I N
I O N
Appeal from a judgment
of the Superior Court
of
County, Richard M. King, Judge. Affirmed.
Jan B. Norman, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
* * *
Defendant David
Santillan Lemus was convicted by a jury of an
§ 245, subd. (a)(1)). They acquitted him
of charges of attempted murder and criminal threats, and were unable to reach a
verdict on the lesser included offense of attempted
voluntary manslaughter, arising from the same altercation. The trial court declared a mistrial on that
charge and later dismissed it in the interests of justice (Pen. Code, § 1385,
subd. (a)). Defendant was sentenced to
the midterm of three years for the assault
with a deadly weapon and ordered to pay restitution and various fines and
fees. He filed a timely appeal.
We appointed
counsel to represent defendant on
appeal. While not arguing against
defendant, counsel filed a brief which fully set forth the facts of the case
and advised us there were no arguable issues on appeal. The brief included a review of the record and
consideration of possible arguments, but concluded none of those arguments had
any chance of success.
We informed
defendant he had 30 days to file written
argument on his own behalf. Three
months have passed and we have received no such argument. We have reviewed the record of defendant’s
trial and the brief filed by defendant’s counsel, and find ourselves in
agreement with defendant’s counsel:
There is no arguable error in the proceedings against defendant. (People
v. Wende (1979) 25 Cal.3d 436.)
FACTS
Defendant
was visiting at his girlfriend’s house when he got into a shouting match with
Anthony Kightlinger. Kightlinger tried
to calm him down, but defendant began yelling that he was going to kill
him. Kightlinger invited the much
smaller defendant to “settle the matter outside,†but when he heard another
person warn that defendant had a knife, he closed the security screen door
between him and defendant and held it shut.
Sure enough, defendant was at the door with a large carving knife in his
hand.
Kightlinger
thought he heard the knife drop, but defendant got through the door with a
knife in his hand and stabbed Kightlinger once in the kidney area, once in the
back, and once in the chest.
Nonetheless, Kightlinger got the better of defendant and began kicking
him. Defendant fled with his girlfriend. They left so precipitously, she never went
back to the house where she’d been living – the scene of the altercation – and
never picked up her belongings.
They were
found, two years later, in northern Utah. When contacted by the police, defendant
denied ever having been at the crime scene or having taken part in any fight
there. He was extradited for trial. At trial, his defense was that he had acted
in self-defense.
DISCUSSION
We have
carefully scrutinized the trial record.
The case against defendant was overwhelming; indeed, trial counsel
pulled off something of a minor miracle in getting defendant acquitted of the
criminal threats (“I’m going to kill youâ€) and attempted murder (three stab
wounds to the torso) offenses. Defendant
not only attacked an apparently unarmed man (Kightlinger actually had a pocket
knife in his pants, but did not remember it until he’d been stabbed three
times) with a knife, he also broke through a door to pursue the man. It is difficult to make a convincing
self-defense claim out of those facts.
Viewing the
evidence in the light most favorable to the verdict, as we are required to do (
Cal.4th 1149, 1180), we conclude there was plenty here that was
reasonable, credible, and of solid value to support a verdict beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Appellate
counsel obviously devoted a considerable amount of effort to mounting an appeal
based upon ineffective assistance of counsel or prejudicial misconduct by the
prosecution on the issue of defendant’s flight from the scene. While defendant did not testify, his
girlfriend did. She was asked by
defendant’s trial attorney where they went after the crime and said she didn’t
recall where they went immediately afterward.
When the prosecutor cross-examined, he brought out the fact they had
decamped to Utah and she never
even went back to retrieve her belongings.
At that point, the trial court wisely interrupted cross-examination to
appoint counsel for the witness, concerned that she might be about to
incriminate herself under Penal Code section 32 (harboring a felon). And, after counsel was appointed for her, she
refused to answer any further questions about how she and defendant ended up in
Utah.
So appellate
counsel considered the possibility trial counsel had failed to provide adequate
assistance in failing to object to the Utah
testimony, the prosecutor had committed misconduct by referring to the
defendant’s apprehension in Utah,
and/or the judge had erred in instructing on it. But appellate counsel correctly abandoned any
such avenues. The testimony they went to
Utah and didn’t even stop to get
their belongings was clearly relevant on the issue of consciousness of
guilt. While the trial court stopped
that testimony before it finished and commented it was probably beyond the
scope of direct examination, he never struck the testimony, and since the last
question asked of the witness by defendant’s attorney was, “[w]here did you go
[after the incident],†it was a very close call on whether it was beyond the
scope of direct.
All of this
means the flight instruction was based on properly received evidence, trial
counsel had little chance of keeping it out entirely and did a good job of
limiting it, and the prosecution had every right to refer to it in closing
argument. It also means appellate
counsel was correct in abandoning it as a possible avenue of appeal.
Counsel also
considered arguing the trial court abused its discretion in sentencing
defendant to the midterm of three years for this offense, rather than a low-term
sentence. We agree with counsel this was
a doomed argument. The victim received
three stab wounds in areas where serious injury could have been anticipated. Given the fact there are many assaults with a
deadly weapon that result in no injury whatsoever, and the singlemindedness
with which defendant pursued his victim, the chances of convincing an appellate
court that a mid-term sentence for this offense was an abuse of discretion are
nugatory.
We find
nothing else about the conduct of this trial or the sentencing of defendant
that seems out of the ordinary. The
trial was fairly and properly conducted, the defendant received what we would
consider a favorable verdict, and the trial court sentenced appropriately. Appellate counsel was right: there are no issues on appeal.
DISPOSITION
The judgment
is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
