Filed 8/28/15 P. v. Paz CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051044

         v.                                                            (Super. Ct. No. 14CF1341)

CESAR PAZ,                                                             OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed.
                   Melanie K. Dorian, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
              We appointed counsel to represent Cesar Paz on appeal. Counsel filed a
brief that set forth the facts of the case. Counsel did not argue against her client but
advised the court she found no issues to argue on his behalf. Paz was given 30 days to
file written argument on his own behalf. On June 23, 2015, his letter brief was received
and filed by this court.
              Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The Wende court explained a Wende brief is one that
provides a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124.)
              Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the
court with its independent review, counsel provided the court with information as to
issues that might arguably support an appeal. Counsel raised the following two issues:
(1) whether Paz’s conviction for assault with a deadly weapon was supported by
substantial evidence; and (2) whether the trial court erred by not instructing the jury with
CALCRIM No. 3477, on the presumption that the resident was reasonably afraid.
              In his brief, Paz also argues the trial court erred by not instructing the jury
with CALCRIM No. 3477. Paz adds that if he knew the court would not instruct the jury
with CALCRIM No. 3477, he would have testified at trial. Paz also indicates he made
several requests of his attorney that were unanswered, including requests related to the
production of forensic evidence. Paz also states he told his attorney he wanted the
defense investigator to testify. Lastly, Paz attached a list of cases addressing his claims.
              We have reviewed the record in accordance with our obligations under
Wende and Anders. We considered Paz’s brief and the information provided by counsel.
We found no arguable issues on appeal. The judgment is affirmed.

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                                      FACTS
              Paz met Moises Aguila in January 2014 through Johnny Martinez. At the
time, Aguila was divorced and was staying with Martinez. At one point, Martinez’s
mother said she did not want guests at her house, and Aguila turned to Paz for help. Paz
told Aguila that he could stay at his house for a couple days. Aguila accepted the offer
and moved into the house that he later learned was occupied by Paz, his mother, and his
brother Eddie Paz (Eddie). Paz’s mother never gave Aguila permission to live there.
              Aguila kept his personal belongings in Paz’s room and in a shed in the
yard. He usually slept on a blowup bed in the shed, but occasionally he slept in Paz’s
room and on the couch inside the house. Aguila would not enter the house unless
someone was there. He was never given a set of keys. To get in the house, he used the
keys that Eddie would leave for him in a hiding place. Aguila did not pay rent, but he
helped with chores and drove Paz around. At trial, Aguila called Paz a good friend.
              Aguila admitted his drug problem led to his divorce. And during the time
he was living in Paz’s house, he often smoked marijuana and methamphetamine in the
shed with others who were also staying at the house. Aguila testified Paz was aware of
this and never asked Aguila to stop or reported him to the police. Although Paz would be
in the shed area while others were doing drugs, Paz did not do drugs. He just drank.
              On the morning of April 17, 2014, Aguila was in the shed smoking
methamphetamine. He believed Paz probably walked in. He did not recall Paz telling
him to stop using drugs or asking him to leave his house but acknowledged Paz always
told everybody to leave. About 10 or 11 p.m. that night, Aguila decided to head to his
friend Martinez’s house down the street. Aguila testified he left Paz’s house on his own
volition and not because Paz told him to leave.




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             At about 1 a.m., on April 18, 2014, Aguila was walking back to
Paz’s house with Martinez. He saw Paz standing by a tree near a bench inside his gated
front yard speaking with a neighbor. As Aguila approached, Paz said something, but
Aguila was not sure if the comment was directed at him. Aguila proceeded to walk onto
the property and was in the process of unlocking the gate when Paz began yelling at him
not to go in the house. Aguila and Paz began to swear at each other. Aguila testified that
was how the two always talked to each other. Aguila said he was “‘coming in anyway’”
because he needed to get his personal belongings from the house, and then proceeded to
unlock the top latch on the gate. Aguila had a week’s worth of clothes inside the house
and in the shed, although most of his property was elsehwere.
             Aguila lowered his head to unlock the gate, and when he moved his head
up, he suddenly heard whistling and felt his head burning. When he touched his head, he
saw blood. He looked up at Paz and saw him holding a golf club. Aguila did not see the
golf club before he was hit but believed Paz may have been hiding it behind his leg.
             The attack surprised Aguila. When he left the house earlier that day, he and
Paz were friendly and they joked around. After realizing he had been hit, Aguila yelled,
“‘Cesar, did you fucking hit me?’” Aguila started to fall back and Martinez helped him
stay up. Aguila wanted to go after Paz, but Martinez stopped him. Aguila said to
Martinez, “‘[Did] you see what this motherfucker did to me?’” Aguila and Martinez
walked back to Martinez’s house, and Martinez called the police.
             Shortly after, Officer Alejandro Partida responded to an assault with a
deadly weapon call and was flagged down by Martinez. Aguila was sitting down in front
of Martinez’s house and holding a paper towel to the back of his head. Partida observed
a cut on the back of Aguila’s head, about three-quarter inches long.




                                            4
             Aguila told Partida he stayed at Paz’s house and had his property there.
Aguila said he was walking to the liquor store with a friend when he passed by Paz’s
house and saw Paz in the yard. Paz yelled and cursed at him. Paz yelled, “‘I told you not
to fucking come back to my house.’” Aguila ignored Paz and continued to walk past him
on the sidewalk. Aguila told Partida he felt a hard hit on the back of his head, and when
he had turned around, he saw Paz holding the golf club. Partida did not perceive Aguila
to be “fuzzy” or “out of it” so Partida believed Aguila was able to make a statement.
             After speaking with Aguila and Martinez, Partida drove his vehicle down
the street to Paz’s house. Partida announced himself as a Santa Ana police officer.
Moments later, Partida observed individuals walking from the backyard. Other officers
stopped the two individuals, later identified as Paz and his companion, at gunpoint,
handcuffed them, and detained them. Partida recovered two golf clubs from the premises
and showed them to Aguila and Martinez, who identified one of them as the weapon.
             Partida questioned Paz “to get his side of the story.” Paz told Partida that
he was defending his property from drug users who were trespassing on his property. Paz
confirmed Aguila was staying in his house and kept his property there, but he told the
officers when Aguila approached the house that night he asked Aguila not to enter his
property. He then refused to answer further questions.
             Paz did not say anything about Aguila threatening him or carrying a
weapon on his person. Paz appeared upset and only spoke with the officer for a couple of
minutes before refusing to answer any more questions.
             Aguila was taken to the hospital. There, Aguila spoke with an officer, and
someone from Crime Scene Investigation photographed his head injury. Partida did not
follow up with Aguila as to whether he had used drugs at Paz’s house or whether he had
attempted to trespass on Paz’s property. During the course of the investigation, Partida
did not see any signs that Aguila was intoxicated or under the influence of drugs. Partida
did not conduct any investigation to find out whether Aguila or Martinez was under the

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influence of or possessed any drugs as he “didn’t feel the need” to do so. Aguila
admitted he did not give the police officers any information about his alcohol or drug use
that night. At trial, Aguila remembered telling Partida that he went to get cigarettes but
denied telling the officers he was walking to a liquor store with Martinez to get cigarettes
or that he had been hit on the head when walking past the house. Aguila admitted to
having used alcohol and drugs the night of the incident, but he did not believe that use
had affected his ability to perceive and recollect.
              Aguila spoke to a defense investigator before trial on September 24, 2014.
During the conversation, Aguila admitted to the investigator he had been asked to leave
the house three times, probably by Paz, prior to that night. He testified that even though
Paz would ask him to leave, Paz always let him return. So when Paz asked him to leave
that day, he simply “brushed it off” because he “was there to protect [Paz’s] mom” and
did not believe Paz would strike him. He also admitted to the defense investigator that
when he was trying to enter the gate that night, Paz told him not to come in. He likely
said something like, “I’m going to come anyway.” He described his verbal exchange
with Paz as part of their routine “trash talk” and denied he had said or done anything to
provoke Paz or that he had challenged him to a fight.
              When he testified, Aguila was wearing a jail jumpsuit. He was serving a
three-month sentence in the Orange County jail for a 2014 burglary and possession of
stolen property conviction. Aguila received immunity from prosecution for crimes
arising out of his testimony or other information given as long as it was the truth.
              Paz did not call any witnesses. The defense requested the trial court
instruct the jury with CALCRIM No. 3477. The court denied the request finding there
was not substantial evidence to support giving the instruction. The court did instruct the
jury on self-defense, CALCRIM No. 3470, the right to eject a trespasser,
CALCRIM No. 3475, and the right to defend real property, CALCRIM No. 3476.



                                              6
              The jury convicted Paz of the sole count alleged against him, assault with a
deadly weapon, a golf club (Pen. Code, § 245, subd. (a)(1), all further statutory references
are to the Pen. Code). The court sentenced Paz to the midterm of three years in prison
and awarded him custody credits for 162 actual and 162 conduct days. The court
                                                                              1
imposed the applicable fines and fees. Paz filed a timely notice of appeal.
                                       DISCUSSION
              First, Paz questions whether substantial evidence supports his conviction.
Next, Paz asserts the trial court erred by not instructing the jury with CALCRIM No.
3477. We will address each in turn.
Substantial Evidence
              “Evidence is substantial if it is reasonable, credible and of solid value.
[Citation.]” (People v. Dunkle (2005) 36 Cal.4th 861, 885, overruled on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It is undisputed Paz hit Aguila on
the back of the head with a golf club so substantial evidence questions are limited to
whether there was substantial evidence to establish the elements of assault with a deadly
weapon conviction, and if so, whether Paz was justified in hitting Aguila based on
self-defense or defense of property.
              Assault with a deadly weapon requires proof defendant wielded a deadly
weapon. (§ 245, subd. (a)(1).) The commission of section 245, subdivision (a)(1),
requires proof that a defendant committed assault with force likely to produce “great
bodily injury,” which is “bodily injury which is significant or substantial, not
insignificant, trivial or moderate. [Citation]” (People v. McDaniel (2008)

1
                On December 12, 2014, a month after the trial court sentenced Paz, the
court conducted a hearing and determined Paz had the ability to pay for the preparation of
the probation and sentencing report. Paz did not file a timely notice of appeal from that
order. On May 21, 2015, Paz filed petition for writ of habeas corpus seeking relief from
late filing of his notice of appeal (case No. G051954), which is pending.


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159 Cal.App.4th 736, 748.) Our Supreme Court has explained, as used in section 245,
subdivision (a)(1), a “‘deadly weapon’” is “‘any object, instrument, or weapon which is
used in such a manner as to be capable of producing and likely to produce, death or great
bodily injury.’ [Citation.]” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029.)
Accordingly, a golf club, while not deadly per se, may be a deadly weapon within the
meaning of section 245, subdivision (a)(1), when used in a manner capable of producing
and likely to produce great bodily injury. In hitting Aguila on the head with the golf
club, Paz used the golf club in a manner capable of producing and likely to produce,
death or great bodily injury. The injuries sustained by Aguila were significant and
substantial. The evidence supports all of the elements necessary to prove assault with a
deadly weapon.
              We turn to the issue of self-defense or defense of property. “‘To justify an
act of self-defense . . . , the defendant must have an honest and reasonable belief that
bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The threat of bodily
injury must be imminent [citation], and ‘. . . any right of self-defense is limited to the use
of such force as is reasonable under the circumstances. [Citation.]’ [Citations.]” (People
v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) The prosecution has the burden of
proving, beyond a reasonable doubt, a defendant did not act in self-defense. (People v.
Saavedra (2007) 156 Cal.App.4th 561, 571.)
              Paz did not testify he had an honest and reasonable belief that bodily injury
was about to be inflicted upon him by Aguila. And the facts in the record do not support
an inference of such a belief. Paz simply blindsided Aguila after a verbal exchange by
hitting Aguila in the back of the head.
              “‘[T]he owner of property is justified in using force or a deadly weapon to
eject a trespasser only when it is manifest to one, as a reasonable person, that injury to
the property is contemplated, and that the owner is then entitled to use only such force as
is reasonably necessary to justify the attack or to protect the property.” (People v. Miller

                                              8
(1946) 72 Cal.App.2d 602, 606.) The use of excessive force, or an attempt to use
excessive force, against a trespasser is unlawful. (People v. Heise (1933) 217 Cal. 671,
673.) There is no evidence in the record that suggests Paz acted in reasonable defense of
his property. Thus, we conclude substantial evidence supported Paz’s conviction.
Instructional Error
               Paz argues his yard was akin to his residence and because Aquila entered
his yard without his consent, the trial court was required to instruct the jury with
CALCRIM No. 3477. Not so.
               CALCRIM No. 3477 reads: “The law presumes that the defendant
reasonably feared imminent death or great bodily injury to (himself/herself) [, or to a
member of (his/her) family or household,] if: [¶] 1. An intruder unlawfully and forcibly
(entered/ [or] was entering) the defendant’s home; [¶] 2. The defendant knew [or
reasonably believed] that an intruder unlawfully and forcibly (entered/ [or] was entering)
the defendant’s home; [¶] 3. The intruder was not a member of the defendant’s household
or family; AND [¶] 4. The defendant used force intended to or likely to cause death or
great bodily injury to the intruder inside the home. [¶] . . . [¶] The People have the
burden of overcoming this presumption. This means the People must prove that the
defendant did not have a reasonable fear of imminent death or injury to (himself/herself)
[, or to a member of his or her family or household,] when (he/she) used force against the
intruder. If the People have not met this burden, you must find the defendant reasonably
feared death or injury to (himself/herself)[, or to a member of his or her family or
household].”




                                              9
              In People v. Brown (1992) 6 Cal.App.4th 1489 (Brown), the court held
defendant was not entitled to CALCRIM No. 3477 based on section 198.5, the “Home
                           2
Protection Bill of Rights.” In Brown, there was evidence the victim’s entry onto
defendant’s front porch was unlawful and forcible, but the court held an entry onto a front
porch did not constitute entry into a residence as required under section 198.5.
              “‘[A] trial court need give a requested instruction concerning a defense only
if there is substantial evidence to support the defense.’” (In re Christian S. (1994)
7 Cal.4th 768, 783.) “Although a trial court should not measure the substantiality of the
evidence by undertaking to weigh the credibility of the witnesses, the court need not give
the requested instruction where the supporting evidence is minimal and insubstantial.”
(People v. Barnett (1998) 17 Cal.4th 1044, 1145, fn. omitted.) “Instructions only need be
given where the ‘evidence [is] substantial enough to merit consideration.’” (People v.
Hill (2005) 131 Cal.App.4th 1089, 1101, overruled on other grounds in People v. French
(2008) 43 Cal.4th 36, 48, fn. 5.) Here, relying on Brown, the trial court found a lack of
substantial evidence to support the giving of CALCRIM No. 3477. We agree.
              Paz asserts he only waived his right to testify because he thought the court
would instruct the jury with CALCRIM No. 3477. Although jury instructions were
finalized after Paz indicated he would not be testifying, nothing in the record suggests he
made any attempt after the jury instructions were finalized to advise the trial court he
wanted to testify. Paz does not explain why the court’s decision not to give



2
              Section 198.5 provides: “Any person using force intended or likely to
cause death or great bodily injury within his or her residence shall be presumed to have
held a reasonable fear of imminent peril of death or great bodily injury to self, family, or
a member of the household when that force is used against another person, not a member
of the family or household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or had reason to
believe that an unlawful and forcible entry occurred. [¶] As used in this section, great
bodily injury means a significant or substantial physical injury.”

                                             10
CALCRIM No. 3477 made a critical difference in terms of his willingness to testify. We
find no error in the court allowing the case to go to the jury without Paz testifying.
Defense Counsel Failures
              Paz complains he “requested several things” from his counsel “for trial.”
He indicates his lawyer did not raise “D.N.A. or fingerprinting.” There is nothing in the
record that suggests evidence of either was available. Because identity of the perpetrator
was not an issue at trial, we see no relevance even if such evidence was available.
              Paz also states he wanted Aguila’s “toxicology report, if one was
available.” Initially, we note the testimony of the police officers indicates no tests were
taken to determine the toxicity of Aguila’s blood. More importantly, Paz offers no
explanation as to how such evidence would have helped him, and we cannot perceive any
way in which this evidence would have benefited Paz at trial.
              Lastly, Paz states he wanted the defense investigator to testify to impeach
Aguila. The record demonstrates Aguila was impeached when defense counsel
confronted him with his statements to the defense investigator. Testimony from the
defense investigation was, therefore, unnecessary.
              There is no reasonable probability that had defense counsel done any or all
of the things Paz had requested that the result would have been more favorable for Paz.
(Strickland v. Washington (1984) 466 U.S. 668, 687, 695.)
Independent Review of the Record.
              Our independent review of the record pursuant to Wende, supra, 25 Cal.3d
436, and Anders, supra, 386 U.S. 738, including the possible issues raised by appellate
counsel, has disclosed no reasonably arguable appellate issue.




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                                  DISPOSITION
            The judgment is affirmed.




                                             O’LEARY, P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.




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