The opinion of the court was delivered by: Raye,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Joshua Wayne Vinyard of assault by means likely to produce great bodily injury and battery causing serious injury, and found he personally inflicted great bodily injury. (Pen. Code, §§ 243, subd. (d), 245, subd. (a)(1), 12022.7, subd. (a).)*fn1 The trial court found defendant had a prior strike and prior serious felony. (§§ 667, subds. (a) & (b)-(i), 1170.12.) The trial court sentenced defendant to prison for 12 years, and defendant timely appealed.
On appeal, defendant contends trial counsel should not have revealed during voir dire that defendant had a prior conviction for child molestation, trial counsel should have cross-examined the victim about gang membership, the trial court should not have ruled the People could impeach defendant with the prior molestation conviction, the People failed to disclose exculpatory evidence, and no substantial evidence supports the assault verdict. Each of these contentions is frivolous or borders on frivolous. We shall affirm.
Myesha Shadd testified that she worked at a Del Taco restaurant on February 16, 2008. At around 11:40 p.m., there was a dispute in the drive-thru line. She saw a man standing next to a car, "going back and forth with a guy in the car. Arguing, saying loud cuss words." A woman was driving the car and the man, who "looked like a rocker" and had tattoos, was in the back seat. Another customer "tried to break up the argument." The rocker (victim David Acuna) got out of the car and the argument continued "across the street." Shadd called 911 and for a while could not see what was happening, but then went into the parking lot and could see the two men punching at each other, but mostly missing: "They were both intoxicated. It was a clumsy fight." She thought the victim "kept it going.
He was the one that got out of the car. He made the initiation. He, the rocker, he's the one that ran after the guy." The other customer tried to break the men up and "grabbed them" at one point. After about a minute, the fight broke up and the victim walked back to the restaurant, went to the bathroom, and then asked after his girlfriend. Shadd told him his girlfriend was coming back and he waited outside. He was calm, polite, and never left the restaurant.
After about 30 seconds, a man Shadd had seen much earlier that day jogged across the street towards the victim, who was still outside the restaurant. This man, whom Shadd identified as defendant, was angry, had his fist raised, and said something about his friend. Defendant struck the victim in the face a few times. Defendant struck first, although the victim was not acting aggressively, but seemed confused and his hands were up with his palms toward defendant, in a defensive posture. The victim fought back and although he took a hard hit to the head, defendant kept punching him. Both were throwing "fast, aggressive, contact punches," however, the victim missed some of his punches, and those he connected were light, defensive, punches, whereas "all [of defendant's] punches were making contact, like he knew where he wanted to hit him. They were hitting his face, his body. Every punch he gave was contact to the rocker." At one point defendant swung the victim into a car and they fell, then defendant began choking him. Shadd never saw the victim lift or swing defendant, and defendant never appeared to be scared or seeking to break off the fight. The fight moved toward the restaurant window, and "defendant swung the rocker into the window." Defendant "took him by the collar of his jacket, it looked like, and took his momentum and was head first." When defendant did this a second time, the victim's head went through the window. Then defendant "had his hand on the rocker guy, on I guess like his head, and another on his body, and he was pushing his head into the window, repeatedly, while the guy's head was in the window." Shadd called to Brian Slagter, a fellow employee and a "big guy," and as Brian ran out, defendant ran; "[h]e got scared off."
Brian Mertz testified he was with defendant that night. Mertz, who was drunk, got into an argument with a man in a car at the Del Taco, and the fight continued across the street. Mertz called 911, stating he had a "bad feeling something was going to happen" because "when [defendant] came back from Del Taco, he asked me what's wrong, and I said, I just got hit in the back of the head, you know." Defendant "said that if you're my friend, you'd tell me who it is, and I didn't tell him," then defendant ran across the street. Defendant, who had been drinking, was "fired up," and although Mertz could not see a fight, he could hear yelling and he screamed at the 911 operator that "my friend's beating him up."
Brian Slagter testified he broke up an argument in the drive-thru line involving a man in a car and two men outside the car, one of whom stayed by the sidewalk. He saw the men run across the street, and saw a "couple blows" but he could not tell who hit who. Later, Slagter heard Shadd scream "Big Guy," and when Slagter ran out he saw "the punk rocker kid with his hands up and another gentleman." The rocker seemed confused and "I seen the punk rocker throw his hands up like he didn't, like, What's going on dude? I don't want no more. [¶] And I heard another gentleman scream, Why are you -- do you want to fight with my friends?" and then the two men fought. Defendant, whom Slagter identified in court, threw the first punch, and Slagter had not seen the other man acting aggressively. The men "scuffled" and tripped, falling onto a vehicle, and then "when the punk rocker was on the window, Vinyard had the advantage, and Vinyard then punched him. And when he punched him, the man's head was on the window, and the head went through the window." Until then, "it was a pretty even scuffle." The first two punches at the window did not break the glass: "The last, third punch when he had his head up against the window. It shattered. It was gone. . . . And when he hit him on the window, he got scared. I screamed, he ran." The man "pulled his head out. When the window broke, it came down on top of the two gentlemen." Defendant continued to hit the victim until Slagter screamed and chased him. During the fight Slagter never saw defendant try to stop the fight or appear to be afraid.
David Acuna testified his friend's girlfriend was giving him a ride and he sat in the backseat because the front passenger door did not work. After they placed their order in the drive-thru line, he heard some yelling and saw a man walking by the line and swearing at the people in the cars. Acuna, who was drunk, got out of the car, "chased him across the street, and we got in a fight." The fight was "clumsy, stupid." Another man soon broke it up and Acuna returned to Del Taco and found his companion had left. After he spoke with a woman inside, he went outside to wait for his companion, and after "[m]aybe seconds" defendant said, "Why are you fucking with my friends?" Acuna turned around and defendant slugged him in the face. Acuna had not challenged defendant, but "was backing up" and "was surprised." He might have said something like, "Why is your friend being a jerk?" but he could not be sure. In any event, Acuna punched back and the men "went down" onto the hood of a parked car, "[c]ame up off the car, went towards the window, and my head crashed through it" when defendant shoved him. Defendant continued to hit Acuna after Acuna's head went through the window. At no time did defendant try to stop fighting or display fear.
Acuna admitted he had a misdemeanor conviction for "tampering with a vehicle" and explained he and a friend had been "monkeying around with a convertible, like jumping on the back, on the seats. [¶] We weren't trying to do anything else." He denied being in a gang, but conceded he had "lots of kinds" of tattoos and displayed and described some to the jury.
A doctor testified Acuna had various cuts requiring attention, including to his temporal artery, a serious injury that could cause someone to bleed to death. She also testified to defendant's injuries.
Officer Michelle Brown testified that she spoke with Brian Slagter that night, and he told her defendant ran across the street "toward Acuna, stating something to the [effect] of: Why did you hit my friend. [¶] At that point, Slagter stated he saw Acuna kind of back up, put his hands as if he was trying to say, you know, what's going on." Slagter told her defendant then started punching Acuna, the two fell onto a parked car, and eventually "Vinyard grabbed Acuna's head and slammed it against the window a couple times. And then on the second time caused it to shatter." Then "more punches were thrown and Slagter stated that Vinyard took off running across the street." Officer Brown testified that defendant was belligerent at the hospital.
The jury heard recordings of telephone calls defendant made from jail. According to a transcript, the accuracy of which is not disputed, defendant told a man: "So Brian needs to fucking -- you need to tell Brian he needs to have my back; otherwise, I'm going to jail." The man said he spoke to Brian but it did not "register" in Brian's head. Defendant told the man to try again, suggesting he say: "'We're Josh's [defendant's] friends, and if you're Josh's friend, then we're your friend too, you know? We're just trying to help Josh get out of a bad situation, and you can help him. You just need to bear witness to the fact that this guy started issues with you first, then started issues with Josh. And then Josh is good to go.' I will be out of here, you know? [¶] MALE: ...