APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed. (Super. Ct. No. SCD218632)
The opinion of the court was delivered by: McDONALD, J.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Onyi Emembolu appeals a judgment following a jury verdict finding him guilty of one count of battery with serious bodily injury (Pen. Code, § 243, subd. (d))*fn1 and one count of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)). On appeal, he contends the trial court prejudicially erred by not sua sponte instructing the jury with CALCRIM No. 224 or No. 225 in connection with its consideration of circumstantial evidence.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of July 13, 2008, Daniel Cournoyer and his girlfriend, Sara Saraceno, went to a bar where they ate and consumed a few alcoholic beverages. While they were standing at the bar, Saraceno turned around and asked Emembolu for a cigarette. He replied "no" and made a comment to her.*fn2 Saraceno turned away without saying anything further. Cournoyer then turned and addressed Emembolu. He apparently told Emembolu to "[j]ust back off." Cournoyer did not act physically or verbally aggressive toward Emembolu. He did not touch or lunge toward Emembolu. As Cournoyer apparently turned to face Saraceno, Emembolu hit Cournoyer on the side of his head with all his force. Cournoyer was caught "off-guard" or defenseless, and the hit was described by one witness as a "sucker punch." Cournoyer was knocked unconscious and fell to the ground. Emembolu immediately fled the scene, but was soon apprehended.
An information charged Emembolu with one count of battery with serious bodily injury (§ 243, subd. (d)), with an allegation he personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)), and one count of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)), with allegations he personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)).
At trial, the prosecution presented the testimonies of Cournoyer, Saraceno, and other percipient witnesses who described the incident. Emembolu testified in his defense that he was drinking beer while socializing with some friends at the bar. After he told Saraceno he did not have a cigarette for her, Cournoyer pushed him into the bar and caused him to lose his balance, told Emembolu that he did not belong there, and used a racial epithet for an African-American. Emembolu then pushed him back. After they pushed each other back and forth, Cournoyer took a swing at Emembolu. Emembolu took a step back and, as Cournoyer fell forward, he struck him in the face or head. Emembolu testified he struck Cournoyer because he felt threatened and had to protect himself. After Cournoyer fell, Emembolu stepped over him and ran out of the bar, thinking Cournoyer may have some friends who might jump him. One of Emembolu's friends, Justin Newman, testified that Cournoyer was aggressive and pushed Emembolu.
The jury found Emembolu guilty on both counts and found the allegations true. The trial court sentenced him to three years of formal probation with the condition that he spend 90 days in local custody. Emembolu timely filed a notice of appeal.
Emembolu contends the trial court erred by not instructing the jury sua sponte with CALCRIM No. 224 or No. 225 in connection with its ...