The opinion of the court was delivered by: Hull, 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 of first degree burglary (Pen. Code, §
459; unspecified statutory references that follow are to this code),
attempted murder (§664/187, subd. (a)) with personal use of a knife
(§12022, subd, (b)(1)), and two counts of assault with a deadly weapon
(§ 245, subd. (667.5, subd. (b (b)-(i); 1170.1
(1)). Defendant admitted a prior prison term (§
and two prior serious felonies (§§ 667, subds. (a) &.
We note that, although defendant admitted his 1998 juvenile adjudication as both a five-year enhancement and a strike, because it was a juvenile adjudication and not a conviction, it does not qualify as an enhancement under section 667, subdivision (a). (People v. West (1984) 154 Cal.App.3d 100, 110.) The trial court did not impose an enhancement based on this prior conviction; instead, it imposed a five-year enhancement for the 2005 prior on both counts 2 and 4. (People v. Williams (2004) 34 Cal.4th 397, 405.)
Sentenced to 13 years plus 52 years to life in prison, defendant appeals. He contends it was an abuse of discretion and a violation of due process to admit evidence he had ties to the Aryan Brotherhood and that his mother had pleaded no contest to burglary based on the events we will set forth momentarily. He further contends the cumulative effect of these errors requires reversal and, to the extent any claim was forfeited, he received ineffective assistance of counsel. Defendant contends, and the People concede, that the case must be remanded for resentencing on the attempted murder count. We remand for resentencing and with directions to strike the prison term enhancements, and otherwise affirm, finding no prejudicial error in the admission of the challenged evidence due to the overwhelming, uncontroverted evidence of defendant's guilt.
Jennifer M. and Starla S. shared an apartment in Sacramento. Defendant's mother, Angela Bennett, was a neighbor. (To avoid confusion, Angela Bennett is hereafter referred to as Angela or defendant's mother.) Jennifer M. knew defendant and they had been intimate in the past. Everyone, including his mother, called defendant "Hate."
On April 1, 2008, Kenny M., a homeless youth, was at the apartment staying with Jennifer M. and Starla S.; Jennifer M.'s boyfriend Tommy D. was also there. Defendant walked by the window and exchanged heated words with those in the apartment. Later that night, defendant's mother knocked on the door. When Starla S. opened it, defendant pushed his way into the apartment. He fought with Kenny M. and during the fist fight a pocket knife fell to the ground. The fight moved to the kitchen where defendant cut both Kenny M. and Tommy D. with a knife. Defendant fled with his mother and her boyfriend.
These facts are undisputed, but Jennifer M., Starla S., Kenny M. and Tommy D. gave differing versions of exactly what happened. Because resolution of this case turns on whether the erroneous admission of evidence was prejudicial because it adversely affected defendant's claim of self-defense, we describe the varying versions of events in some detail.
The witnesses disagreed about whom defendant argued with initially. Both Starla S. and Jennifer M. claimed defendant argued with Tommy D. Starla S. testified the argument began when defendant yelled at Tommy D. because he thought Tommy D. gave him a dirty look. Starla S. and Jennifer M. tried to break up the argument. Starla S. went outside and talked to defendant; Starla S. walked with him to his mother's and returned 10 minutes later. Jennifer M. claimed Tommy D. yelled racial slurs such as "skinhead" and "white power" at defendant. Defendant at first walked away, but he came back and asked who said that. After Jennifer M. told defendant it was Tommy D., defendant and Tommy D. began arguing and tried to get at each other. Kenny M. asked why they were fighting. Eventually defendant left.
Both Kenny M. and Tommy D. testified the argument was between defendant and Jennifer M. Kenny M. testified defendant came to the window and argued with Jennifer M. Defendant then challenged Kenny M. and Tommy D. to a fight. Kenny M. called defendant a "punk." Tommy D.'s testimony was similar. Defendant wanted to talk to Jennifer M., but their conversation soon escalated into an argument. Tommy D. pulled Jennifer M. away and tried to calm her down. Defendant said he would kick everyone's ass and challenged them to a fight. Kenny M. said he was not afraid of defendant and called him a punk. Tommy D. told Kenny M. to shut his mouth. Starla S. helped Tommy D. pull Jennifer M. away and then Starla S. went outside and talked with defendant.
That night, defendant's mother knocked on the door of the apartment and, when Starla S. opened the door, defendant rushed in. Starla S. and Jennifer M. testified defendant had a baseball bat. Jennifer M. said he swung it at Kenny M. and then it was knocked away. Defendant lunged at Kenny M.; they wrestled and fought. Starla S. testified defendant slammed Kenny M. into the coffee table, breaking it. She thought defendant dropped the bat when he punched Kenny M. Kenny M. testified he grabbed defendant's legs and took him down. According to Kenny M. and Tommy D., both defendant and Kenny M. stood up and continued to fight; they ended up outside the apartment.
During this fight, Starla S. claimed Kenny M. put his hands up like he did not want to fight; defendant still wanted to punch Kenny M. Defendant threatened to kill Kenny M.; he threatened everyone.
While Kenny M. and defendant were fighting, a pocket knife fell on the floor. Starla S. testified defendant pulled a pocket knife out of his pocket; it was open. Starla S. picked it up when it fell on the floor. Jennifer M. testified a knife fell out of defendant's pocket and Starla S. picked it up. Kenny M. heard yelling about a knife. The police found a pocket knife on a bookcase.
Tommy D. claimed he heard Kenny M. say, "he's got a knife," but he understood Kenny M. to say "he's got a nine," meaning a nine millimeter gun. So Tommy D. ran to the kitchen and grabbed a knife. Kenny M. testified he broke off his fight with defendant and ran into the kitchen. Jennifer M. said defendant chased Tommy D. into the kitchen and then chased Kenny M. and Tommy D. around the apartment with a butcher knife.
The testimony differed on the details of the actual stabbing. Starla S. testified when Kenny M. backed into the kitchen after his fight with defendant, defendant followed and got a knife. Defendant told Kenny M. he would kill him. Defendant lunged at Tommy D. and cut him. Because Tommy D. jumped back, defendant cut him on the collarbone instead of ...