(Super. Ct. No. 08F04240)
The opinion of the court was delivered by: Nicholson , Acting P.J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant John Paul Sarem stabbed Eric Mee and assaulted Rick Ramirez. Convicted of attempted murder and assault with a deadly weapon and sentenced to state prison for twelve years four months, defendant appeals. He contends the trial court erred by (1) denying his motion for a new trial, motion for an evidentiary hearing, and motion for release of juror information, all based on alleged juror misconduct;
(2) instructing the jury that it could not consider a lesser included offense until it acquitted on the greater offense; and (3) excluding evidence of a witness's prior conviction. Finally, he contends that (4) if the evidence claim was forfeited he was denied his right to effective counsel. We conclude that defendant's contentions are without merit.
We relate the facts in the light most favorable to the verdict. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
On the afternoon of May 20, 2008, Rick Ramirez went to the American River with his seven-year-old daughter Mariah and some friends, including Eric Mee, Franco Guerrero, and Joe Marino. After parking their cars on Estates Drive, they walked down to the river along a levee and some trails. Not long after arriving, Marino and his girlfriend Brittany returned to their car upon learning it had been broken into. Guerrero also left about the same time in order to meet a friend in the parking area. Mee, Ramirez, and Ramirez's daughter remained at the river to play with toy boats.
Earlier that same day, defendant and some friends, including Austin Alberghini, had a barbeque at defendant's residence, where both defendant and Alberghini drank. The group then decided to go to the American River. They parked on Estates Drive before walking down to the river. At a separate part of the river from Ramirez's group, defendant and his friends played football, Frisbee, and other activities, while continuing to drink. Alberghini, having drunk too much, lay down to rest and fell asleep. Upon awakening he noticed his group had already crossed the river to leave, and in a kind of "drunken stupor rage," he began to cross the river towards them.
As Alberghini was crossing the river to meet up with his group he began yelling at his girlfriend, using foul language. Ramirez shouted at Alberghini to keep it down, because his daughter was nearby and could hear what was being said. While arguing back and forth with Ramirez, Alberghini changed his direction from defendant's group to Ramirez's location. Fearing conflict and noticing that Alberghini's group was larger than his own, Ramirez called Guerrero on his cell phone, telling him to get back down to the river, and slowly began backing up a narrow incline. The path had blackberry bushes on the side and was wide enough for just one person comfortably. Both Mee and Ramirez's daughter Mariah were moving up the hill ahead of Ramirez, with Mee keeping Mariah ahead of him and farthest away from Alberghini.
As Ramirez backed up the incline he noticed that defendant had begun running in their direction from the river brandishing a black knife in front of him. As Ramirez reached the top of the incline, defendant had caught up to Alberghini, who was just below Ramirez. Alberghini swung his fist at Ramirez and missed. Defendant then lunged forward with the knife, narrowly missing Ramirez. Ramirez, jumping back to avoid the knife, fell down the hill, through blackberry bushes, and into the water below. He suffered scrapes from the bushes.
Defendant continued up the path towards Mee and Mariah. Unarmed, Mee grabbed Mariah to hold her behind him and yelled to defendant, "Are you kidding? There is a girl here." Defendant responded profanely. Seeing a swiping motion from defendant, Mee closed his eyes and held his position. Unable to move without putting Mariah in danger, Mee felt the knife enter his chest. When Mee opened his eyes, he saw defendant running away. Realizing he had been stabbed, Mee headed toward his car and called 911. After being put on hold by 911, he dropped his phone and continued walking toward his car. Eventually, Mee ran into two young men who called 911 and assisted him with his bleeding.
Guerrero, on his way back to the river, ran into Mee. He quickly called Marino to come pick up Mariah and get her out of the situation. Once he knew Mee was being attended to, help was on the way, and Mariah was taken care of, he went to look for Ramirez.
Ramirez recovered from his fall and ran around some bushes trying to get out of the water and back up the hill. He found defendant running down the hill, knife still in hand. Defendant made a brief comment asking if Ramirez wanted to fight, but Ramirez stayed in the water, about 10 feet away, and defendant continued on his way. Alberghini came down the hill next, and he and Ramirez again argued. Guerrero arrived soon after and informed Ramirez that Mee had been stabbed. Instantly, Alberghini switched his tone from confrontational to calm and claimed he had not stabbed anyone. Ramirez grabbed Alberghini to make sure he stayed and talked to them. Ramirez asked for defendant's name which Alberghini eventually gave to him.
Dr. Lynette Scherer was the trauma surgeon who operated and saved Mee's life. The chest wound Mee had received was about four to five inches deep, located on the right side of his sternum. The wound damaged a network of veins near his heart causing massive blood loss, eventually totaling 15 liters, about three times one's total blood volume. To save his life, initial cuts into his chest cavity had to be made in order to relieve pressure that was building up from the internal bleeding.
After waking up from his induced coma, Mee was unable to see. He was diagnosed with shock optic neuropathy. In the doctor's opinion, Mee will not recover his sight.
Several of defendant's friends stated that when Guerrero returned to the river, he had a gun. The statements, however, were inconsistent, varying from Guerrero merely holding the gun to pointing it at defendant's group. One of defendant's friends did not tell the investigating detective about the gun in his first interview with the detective, but after talking to defendant the friend later contacted the detective and added statements about Guerrero having a gun. The friend lied about having talked to defendant prior to the friend's first interview with the detective. No disinterested witness testified that Guerrero had a gun, and one testified that he did not see a gun.
Defendant testified that he came up empty-handed towards Alberghini from the river. In front of defendant and Alberghini were Ramirez, Mee, and Guerrero. Mee had a stick in his hand about a foot and a half long and Guerrero was holding a gun aimed at the ground. Noticing the stick and gun, defendant drew a knife he had concealed in his shorts and stepped in front of Alberghini to show he could defend himself. Ramirez then began backing up a hill away from defendant towards Mee and Guerrero at which point he slipped off the trail and fell down the hill. Defendant turned to tell Alberghini they should get out of there since there was a gun. As he turned back to face Mee and Guerrero, Mee had gotten right in front of defendant with the stick, and in a "knee jerk" reaction defendant threw up his hands to prevent a collision with Mee. Realizing Mee had been stabbed, defendant panicked and ran.