Filed 6/15/15 P. v. Aguillon CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C075360

         v.                                                                      (Super. Ct. No. 13F00749)

MARIO AGUILLON,

                   Defendant and Appellant.


         Convicted by a jury of assault by a prisoner serving a life sentence and possession
of a sharp instrument in prison, defendant Mario Aguillon contends the trial court
violated his Fifth Amendment right to remain silent and erred prejudicially by failing
to instruct the jury with CALCRIM No. 355. Defendant also contends his trial counsel
provided ineffective assistance by failing to request the instruction at trial. We conclude
there was no error because defendant did not request the instruction be given to the
jury at the close of the case. Even assuming error, there was no prejudice and
consequently no failure of counsel because the prospective jurors were instructed during




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voir dire and the evidence against defendant was strong. Accordingly, we affirm the
judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       An amended complaint deemed an information charged defendant with assault by
a prisoner serving a life sentence, with malice aforethought and by means of force likely
to produce great bodily injury (count 1; Pen. Code, § 4500),1 and possession of a sharp
instrument by an inmate (count 2; § 4502, subd. (a)). As to count 1, the information
alleged defendant personally inflicted great bodily injury upon the victim. (§ 12022.7,
subd. (a).) The information also alleged a prior serious felony and a prior strike
conviction for first degree murder. (§§ 667, subds. (b)-(i), 1170.12.)
       The jury convicted defendant on both counts, but found the great bodily injury
enhancement not true. After defendant waived his right to jury trial on the prior, the trial
court found it true.
       The evidence at trial showed defendant, an inmate of California State Prison,
Sacramento, and another inmate jointly assaulted the victim on the B Facility main yard.
While the other assailant punched the victim with closed fists, defendant stabbed the
victim multiple times in the back, arm, and upper torso. Defendant continued his assault
even after a correctional officer sprayed him in the face with pepper spray and threw an
oleoresin capsicum grenade also containing pepper spray. After a second correctional
officer threw another pepper spray grenade, defendant stabbed the victim three more
times before stepping away and throwing the weapon away from him. A surveillance
video of the assault was played for the jury.




1      Undesignated statutory references are to the Penal Code.

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       Defendant, whose hands and forearms were covered in blood, was detained, and
the weapon was recovered. The victim was transported to University of California at
Davis Medical Center (UC Davis), where he was treated and released the next day.
       Dr. Christine Cocanour, a trauma surgeon at UC Davis, testified the victim
suffered numerous stab wounds to the chest and upper left extremity, and a non-displaced
fracture in the sternum. The wounds were washed and treated with dressings. The victim
was not disoriented or in shock. He was not prescribed any medication when released.
Photographs of the victim’s injuries were admitted as exhibits.
       Defendant did not testify or present evidence. His counsel conceded defendant
was a prisoner serving a life sentence who committed an assault on the victim with a
sharp instrument, but argued the prosecution had not proved great bodily injury or malice
aforethought.
                                       DISCUSSION
       Defendant contends prejudicial constitutional error occurred because the jury was
not instructed with CALCRIM No. 355, which states: “A defendant has an absolute
constitutional right not to testify. He or she may rely on the state of the evidence and
argue that the People have failed to prove the charges beyond a reasonable doubt. Do not
consider for any reason at all the fact that the defendant did not testify. Do not discuss
that fact during your deliberations or let it influence your decision in any way.”
(CALCRIM No. 355 (2014) p. 119.) He also contends his trial counsel was ineffective in
failing to request the instruction at trial. We reject both contentions.
                                        Background
       Defense counsel asked the trial court in limine to “advise [the jury] concerning a
defendant’s right not to testify.” The trial court answered: “I do that in voir dire.”
Counsel replied: “Thank you.”
       During voir dire, the trial court stated to the prospective jurors:



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       “I’m going to read you an instruction. I do this at the beginning of every trial or in
every jury selection and I don’t know whether [defendant]’s going to testify or not. I
don’t care. But I want to be sure that you understand and accept this following
instruction.
       “Listen to this: [The court gave CALCRIM No. 355 verbatim.]
       “First of all, does that make sense to everybody? I get that. Everybody is
nodding.
       “Is there anybody who, you know, you understand that[,] you get it, but doesn’t set
well with you. You are not comfortable with that. Anybody have any reservation or
issues about that instruction.
       “This is real central to our justice system in the United States. It’s not the way it is
in all countries, as you know. But it’s a very important ten[e]t of our justice system. The
burden is entirely on the district attorney, on the prosecutor, on the People to prove the
case. The defendant doesn’t have to do anything including, in particular, doesn’t have to
say anything.
       “And if the People don’t prove their case beyond a reasonable doubt, then you
return a verdict of not guilty. If they do prove the case beyond a reasonable doubt you
return a verdict of guilty. You’re all good with that? That work for everybody?”
       The jury panel “as a whole” answered: “Yes.”
       Later, defense counsel questioned a prospective juror in the presence of the jury
panel as follows: “Okay. The judge mentioned that [defendant], like all criminal
defendants, has a right not to testify. There are a lot of people who when they hear that
say, well, that’s great, but if it was me, if I were charged with something, I would--
nobody could stop me from getting on the witness stand and saying I didn’t do it. [¶]
And it’s hard to put that aside because I know that’s what I’d be doing. And if he’s not
doing it the judge may tell me to lay that all aside but sounds pretty suspicious to me right
there. Do you have any feeling like that?” The prospective juror (who was not

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ultimately seated) said he did not; if he were accused of a crime, he would not want to be
on the stand.
       During the instructions conference after the parties had rested, the trial court
enumerated the instructions it intended to give, which did not include CALCRIM No.
355. Both counsel stated they did not have any other instructions to propose.
       The instructions the jury received in oral and written form before deliberations did
not include CALCRIM No. 355.
                                          Analysis
       Defendant contends the trial court violated his Fifth Amendment right against self-
incrimination by failing to reinstruct the jury with CALCRIM No. 355 before it began to
deliberate, after the court had already given that instruction during voir dire. We are not
persuaded.
       CALCRIM No. 355 must be given at trial on request, but defendant cites no
authority holding it must be given at trial without a request, and we have not found any
such authority. (See Carter v. Kentucky (1981) 450 U.S. 288, 300 [67 L.Ed.2d 241];
People v. Evans (1998) 62 Cal.App.4th 186, 190 [CALJIC Nos. 2.60 & 2.61]; CALCRIM
No. 355 (2014) Bench Notes, p. 119.)
       Defendant also cites no authority holding that if the trial court gives CALCRIM
No. 355 during voir dire, the court must repeat it just before deliberations and provide it
to the jury in writing, and we have found no such authority. Defendant relies on
decisions holding that instructions on the presumption of innocence and the People’s
burden of proof beyond a reasonable doubt must be given in oral and written form before
deliberations, even if previously given during jury selection. (People v. Elguera (1992)
8 Cal.App.4th 1214, 1217-1219; accord, People v. Crawford (1997) 58 Cal.App.4th 815,
819-826; see People v. Vann (1974) 12 Cal.3d 220, 226-227.) In those cases, the
appellate courts held the trial court had a sua sponte duty to instruct the jury on the
presumption of innocence and the People’s burden of proof beyond a reasonable doubt in

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every criminal case. (Vann, supra, 12 Cal.3d at p. 226; Crawford, supra, 58 Cal.App.4th
at pp. 819 and 821; Elguera, supra, 8 Cal.App.4th at p. 1219.) In contrast, CALCRIM
No. 355 must be given only upon request of a defendant. Therefore, the case law
defendant cites is inapposite.
       Defendant has shown no error from the trial court’s failure to furnish CALCRIM
No. 355 to the jury in oral and written form before deliberations, after giving that
instruction during voir dire and obtaining the agreement of all prospective jurors that they
understood it and would follow it.
       Defendant has also shown no prejudice from the fact CALCRIM No. 355 was not
included in the instructions given before deliberations. First, the prospective jurors were
instructed during voir dire. Second, the evidence against defendant was strong. Trial
counsel could not have contested that defendant, a prisoner serving a life sentence,
assaulted the victim with a sharp instrument. Counsel won an acquittal on the great
bodily injury enhancement. Counsel’s argument on malice aforethought, the only other
disputable issue, was unlikely to succeed given the videotape of defendant (with the help
of another inmate) chasing the victim down and stabbing him multiple times, undeterred
even by three doses of pepper spray, and the photographs of the victim’s injuries in
evidence. We see no possibility defendant could have fared better had the trial court
repeated CALCRIM No. 355 before deliberations.
       Finally, we conclude defendant has not shown ineffective assistance of counsel.
The record does not show why trial counsel decided not to ask the trial court to repeat
CALCRIM No. 355 during trial, and counsel could reasonably have thought the rule of
law conveyed by the instruction was sufficiently impressed on all prospective jurors
during voir dire. And, as we have explained, defendant has not shown prejudice from
counsel’s actions. For both reasons, defendant’s ineffective assistance claim fails.
(People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)



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                                  DISPOSITION
     The judgment is affirmed.



                                                HOCH   , J.



We concur:



     ROBIE       , Acting P. J.



    DUARTE       , J.




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