(Super. Ct. No. 10F04102)
The opinion of the court was delivered by: Robie , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Arcadio Kyle Guajardo guilty of assault with a deadly weapon and found that he personally used a deadly and dangerous weapon in the commission of the offense. The trial court found that he had three prior serious felony convictions. Defendant was sentenced to state prison for 25 years to life and was awarded 317 days' custody credit and 158 days' conduct credit.*fn1
On appeal, defendant contends certain self-defense instructions were improper: (1) CALCRIM No. 3471 did not apply to this case and its use undermined his defense, (2) CALCRIM No. 3472 lacked evidentiary support and its use was prejudicial, and (3) the cumulative effect of the two errors denied him a fair trial. We affirm.
On June 17, 2010, close friends Levi Moses and Mario Arnold were waiting to board a Sacramento Regional Transit light rail train at a station in downtown Sacramento. Moses, age 23, was five feet nine inches tall and weighed 150 pounds. When the train arrived, Arnold attempted to board at the same time as defendant, who was carrying his bicycle. Defendant was angry, and the two exchanged words. After they boarded, defendant struck Arnold with the bicycle and more words were exchanged. Arnold asked defendant what his problem was, and defendant called Arnold some derogatory names. Arnold walked away from defendant, toward the back of the train car.
Moses boarded the train after defendant and walked past him. Defendant said some words to Moses and struck him with the bicycle. There had been no interaction between the three prior to boarding.
After defendant hit Moses with the bicycle, Moses turned around and they "got a little loud." Moses did not threaten defendant, but he removed his backpack and threw it to the ground "just in case" there was an altercation. Moses raised his fists about waist level because defendant "was coming at" Moses "like he was getting ready to hit [Moses] or something."
Moses felt what he perceived to be a push, and he believed it was defendant who had pushed him. He had not seen anything in defendant's hand.
Moses backed up, and Arnold told him he had been stabbed. Moses was bleeding from the right side of his chest. Moses held his chest in disbelief and asked someone to retrieve his backpack. He and Arnold backed away from defendant without saying anything to him. Moses and Arnold left the train at the next stop. Defendant alighted at the same stop and rode away on the bicycle.
Moses was bleeding "pretty bad[ly]." Soon the police arrived and asked him what had happened. They called for an ambulance that arrived in 10 to 15 minutes. Moses had surgery for his wound, which took about three months to heal.
Moses explained the sequence of events depicted on a compact disc of video from the train car's security camera. Based on his memory and the video, Moses was sure that defendant was the person who had stabbed him.
Arnold, age 20, testified similarly to Moses. Arnold added that defendant had called him the "N-word" in their initial confrontation. Arnold did not threaten to beat up defendant. Arnold saw defendant hit Moses with his bicycle. Moses got mad and began arguing with defendant. Moses threw down his backpack, and defendant threw down his bicycle. Defendant moved toward Moses, who got into a defensive stance. Arnold never saw a knife in defendant's hand. Nor did Arnold see Moses get stabbed; he merely assumed from Moses's condition that he had been stabbed. Arnold and Moses moved away from defendant and got off the train at the next stop.
Sacramento City Police Officer Christopher Lenert received a radio broadcast regarding the assault. He and another officer arrived one minute later and spoke with Moses. Moses lifted his shirt, which was covered in blood, and showed Lenert the wound. After telling Moses to keep pressure on the wound, Lenert called the fire department. Moses described his assailant as a male Hispanic adult, approximately 45 to 55 years old, medium build, salt and pepper hair and mustache, ...