Filed 7/27/16 P. v. Xum CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B265306

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA431377)
         v.

MIGUEL XUM,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Henry J.
Hall, Judge. Affirmed.


         George W. Taylor, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
          A jury convicted defendant and appellant Miguel Xum (defendant) of attempted
murder in violation of Penal Code section 187, subdivision (a) and section 664.1 The
jury also found true the allegations that defendant personally used a deadly and
dangerous weapon within the meaning of section 12022, subdivision (b) and that he
personally inflicted great bodily injury within the meaning of section 12022.7,
subdivision (a). The trial court sentenced defendant to a total of nine years in state
prison.
          Defendant contends his conviction must be reversed because the trial court failed
to give the jury a self-defense instruction. Defendant further contends the court abused
its discretion under Evidence Code section 352 by admitting the weapons into evidence.
          Since substantial evidence did not support instructing the jury on self-defense and
the admission of weapons into evidence was not an abuse of discretion, we affirm the
judgment.
                                       BACKGROUND
          On November 6, 2014, defendant lived in an apartment with the victim, Francisco
Sac (Sac) and with Sac’s brothers Manuel and Antonio.2 That night, defendant and Sac
went to McArthur Park, approximately three blocks from their apartment, and drank beer.
They eventually headed home.
          As the two men approached their apartment, defendant suddenly ran off. He later
emerged between some parked cars with his hands behind his back. Defendant had an
angry expression on his face but Sac did not think defendant was angry at him. The two
men had a good relationship and they had not argued or fought. Defendant said “I’m
going to kill you” and revealed that he had a knife and a pitchfork in his hands. Sac
recognized both the knife and pitchfork as kitchen implements he and his brothers used in
their apartment when cooking. The knife was approximately 12 and a half inches long


1         All further statutory references are to the Penal Code, unless stated otherwise.

2     Because Sac’s brothers share his last name, we refer to the brothers by their first
names to avoid confusion.

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from the tip of the blade to the bottom of the handle. The pitchfork was 11 and a half
inches long.
       Sac asked “What is going on? -- We’re friends. What’s happening?” Defendant
did not respond but began swinging the knife and pitchfork toward Sac. Sac tried to flee,
but defendant caught him and stabbed him in the abdomen. Defendant left the scene.
Sac used his cell phone to call his brother Antonio to tell him that he had been stabbed by
defendant. Sac then lost consciousness. He regained consciousness 15 days later in the
hospital, where he remained from November 2014 through January 2015. During that
time, Sac underwent four surgeries and required several blood transfusions. The attack
left him with a scar that ran from his sternum to below his belt line and two smaller scars
to the right. He also sustained injuries to his thumb and the inside of his right arm.
       Responding officers found Sac lying in a pool of blood near the sidewalk on
Carondelet Street. Sac’s intestines were protruding from an eight- or nine-inch wound in
his abdomen. The officers recovered a knife and pitchfork near a gutter. They arrested
defendant, who was staggering, dazed, and confused, approximately a quarter of a mile
away. He appeared to be intoxicated but uninjured.
       Three days after the attack, defendant told detectives that he and Sac drank beer in
the park, returned home, and had an argument. Defendant said he was intoxicated and
did not remember much about the argument. Defendant said Sac kicked him in the face.
Defendant then went to the kitchen, retrieved a knife, and used the knife to stab Sac in the
stomach. Defendant stated that when he realized what he had done, he felt bad. The
interviewing detective did not observe any bruises on defendant’s face.
                                      DISCUSSION
I. Alleged instructional error
       At the close of evidence, defense counsel requested a self-defense instruction
based on defendant’s statement to the detectives that Sac had kicked him in the face. The
trial court denied the request on the ground that the evidence did not support the
instruction. Defendant contends this was prejudicial error.



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       Self-defense is a complete defense to the crimes of murder and attempted murder.
(People v. Elmore (2014) 59 Cal.4th 121, 133-135.) To establish self-defense, the
defendant must have “actually and reasonably believed that the individual killed [or
attempted to be killed] intended to commit a forcible and atrocious crime and that there
was imminent danger of that crime being accomplished. A person may act upon
appearances whether the danger is real or merely apparent.” (CALJIC No. 5.13.)
Imperfect self-defense is the killing or attempted killing of another person under the
actual but unreasonable belief that the defendant was in imminent danger of death or
great bodily injury. (People v. Booker (2011) 51 Cal.4th 141, 182.) Imperfect self-
defense does not exculpate the defendant; rather, it negates the malice required for
murder and makes the resulting crime a voluntary manslaughter or attempted voluntary
manslaughter. (People v. Breverman (1998) 19 Cal.4th 142, 154.)
       A trial court has a duty to instruct the jury on self-defense or imperfect self-
defense only when there is substantial evidence to support giving such an instruction.
(People v. Crew (2003) 31 Cal.4th 822, 835 (Crew); In re Christian S. (1994) 7 Cal.4th
768, 783.) Substantial evidence is not mere speculation (People v. Sakarias (2000) 22
Cal.4th 596, 620); it is “evidence of reasonable, credible value” (Crew, at p. 835) that a
reasonable jury could find persuasive. (People v. Valdez (2004) 32 Cal.4th 73, 116.)
       Defendant’s self-defense theory was based primarily on statements he made to
detectives following his arrest. Defendant told the detectives that he and Sac returned
home and argued, that Sac kicked him in the face, and that defendant then retrieved a
knife from the kitchen and stabbed Sac. Defendant claims his version of the incident --
that Sac kicked him in the face inside their apartment, and that defendant thereafter
retrieved a knife from the kitchen -- is corroborated by Sac’s testimony and the testimony
of Sac’s brother Manuel. The testimony of these witnesses does not support defendant’s
version of the incident or his theory of self-defense. Sac initially testified that “as soon as
[defendant] arrived to the kitchen, he took out a knife.” He later clarified, however, that
he never saw defendant enter the kitchen, but that his brother Manuel, who was in the
apartment at the time, saw defendant enter and remove a knife from the kitchen. Manuel


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initially testified that at approximately 1:00 a.m. on the night of the crime, he saw
defendant run into the apartment and retrieve a knife that Manuel recognized as one kept
in the kitchen. Manuel subsequently admitted, however, that he never saw defendant
enter the two-room apartment on the night of the crime because he was in an adjacent
room visiting with friends.
       Defendant’s version of events is also contradicted by substantial evidence to the
contrary. Sac testified that the attack occurred on the street outside approximately 45 feet
away from their apartment building, and that defendant sprang out at him from between
parked cars and said “I’m going to kill you.” Sac also testified that he attempted to flee,
but that defendant pursued him and stabbed him. Responding police officers found Sac
lying on the sidewalk in a pool of blood. Sac’s brother Manuel testified that he found Sac
on the street outside the apartment building. Although defendant claimed Sac kicked him
in the face, the detectives who interviewed defendant after the attack saw no bruises or
injuries on defendant’s face.
       Even assuming a jury could find defendant’s claim that Sac kicked him in the face
in the apartment before the attack, the evidence does not support defendant’s self-defense
claim. Self-defense requires both an honest and reasonable belief in imminent peril.
(People v. De Leon (1992) 10 Cal.App.4th 815, 824.) Defendant attacked Sac with a
knife and pitchfork outside the apartment. There was no evidence that Sac was armed
when defendant attacked him. Substantial evidence does not support defendant’s claim
that he believed he was in imminent danger of death or great bodily injury. (In re
Christian S., supra, 7 Cal.4th at p. 771.) Although doubts as to the sufficiency of the
evidence to warrant jury instructions should be resolved in favor of the defendant (People
v. Tufunga (1999) 21 Cal.4th 935, 944), the trial court was not required to instruct the
jury on self-defense based on the evidence presented.
II. Admission of weapons into evidence
       Before the trial, defense counsel objected to the prosecutor’s introduction of the
knife and pitchfork used against Sac and asked that the prosecutor be limited to
photographs of the weapons. The trial court overruled the objection, noting that seeing


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the weapons themselves would “help give the jurors some scale and what the item is all
about.” The trial court further concluded that seeing the actual weapons was not
significantly more prejudicial than seeing a photograph of the bloody instruments.
Defendant contends the trial court’s ruling was an abuse of discretion under Evidence
Code section 352.
       Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” “Under Evidence
Code section 352, the trial court enjoys broad discretion in assessing whether the
probative value of particular evidence is outweighed by concerns of undue prejudice,
confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124.) We cannot disturb the trial court’s exercise of discretion under Evidence
Code section 352 unless “‘the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citations.]”
(Rodrigues, at pp. 1124-1125, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)
       The trial court’s ruling was not arbitrary or capricious, nor did it result in a
manifest miscarriage of justice. The record shows that the trial court weighed the
probative value of the weapons against their potentially prejudicial effect. The court
concluded that seeing the weapons would give the jurors a better sense of their size and
scale as probative evidence of defendant’s intent. One of the weapons, a kitchen
pitchfork, was unusual. The trial court determined that viewing that instrument would
allow the jurors to see “what the item is all about.” Finally, the court concluded that
seeing the weapons themselves was not more prejudicial than viewing photographs of the
blood-covered weapons taken shortly after the crime. Admitting the weapons into
evidence was not an abuse of discretion.




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                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                           ____________________________, J.
                                           CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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