(Super. Ct. No. 10F08189)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Luis Hurtado of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664--count one);*fn1 corporal injury to a spouse (§ 273.5, subd. (a)--count two); and aggravated mayhem (§ 205--count three). The jury found that defendant personally caused great bodily injury under circumstances of domestic violence (former § 12022.7, subd. (e)) and personally used a dangerous and deadly weapon (former § 12022, subd. (b)(1)) in committing the offenses.
Sentenced to seven years to life in state prison, defendant appeals. Defendant raises prosecutorial misconduct, ineffective assistance of counsel, and challenges the sufficiency of the evidence. We shall affirm.
Defendant and Irma Guerra had been married for 11 years, but were separated. They remained "good friends" and did not have sex. Guerra lived with her two daughters in an apartment on Rockingham Drive. For a week, defendant had been sleeping on the couch, but did not live there.
In the mid-afternoon on December 14, 2010, defendant arrived at the apartment, smelling of alcohol. He continued drinking beer. About 10:00 p.m. Guerra's boyfriend, Augustine Lopez, and his boss, Jesus Ramirez, arrived at the apartment. About a week before, defendant had seen Lopez leave Guerra's room in the morning. Shortly after Lopez and Ramirez arrived, defendant became angry and called Guerra a "bitch" in front of her daughters. Guerra told defendant to leave when defendant said something to her daughters. Defendant then started arguing with Lopez. Ramirez left when the argument began. Although Guerra threatened to call 911, defendant refused to leave. Defendant's argument with Lopez became physical and defendant punched Guerra in the face when she intervened. Defendant immediately apologized. Guerra told them to take the fight outside and both defendant and Lopez walked out the door.
Using Lopez's phone, Guerra dialed 911 and walked outside. She stood or sat on the stairs as she spoke on the phone. Defendant crept up behind her with a knife, pulled her head back by the hair, exposing her neck, and began "sawing" and "stabbing" at her neck. She dropped the phone and screamed. As defendant started to drag Guerra by her hair up the stairs, Lopez hit defendant in the head a few times with a car stereo as Guerra struggled. Guerra finally escaped defendant's hold.
Guerra fled to the parking lot where she collapsed, losing consciousness. Defendant had cut her with the knife several times. Lopez assaulted defendant on the stairs and Ramirez and Armando Garcia, a neighbor, assisted Guerra.
About 11:00 p.m., deputies arrived and detained defendant. He seemed calm and offered no resistance. He had an odor of alcohol on his breath, blood on his clothing, and minor wounds on his nose and right palm. Ramirez told a deputy that defendant attacked Guerra from behind although Ramirez denied saying so at the time of trial when he was in custody on an unrelated matter.
Guerra was transported to the hospital where she stayed for three days. She suffered a complex laceration that extended along the jaw line from the right of her chin to just below her earlobe, slicing through the skin and several layers of tissue and missing the carotid artery by about an inch. The injury required several hours of surgery. She also suffered a cut on the back of her ...