Filed 2/10/15 P. v. Edwards 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C074715

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F00015)

         v.

MARK EDWARDS,

                   Defendant and Appellant.




         As might be expected, a bicyclist is at a distinct disadvantage when pitted against
a truck driver in a classic case of road rage. A jury found the truck driver, Mark
Edwards, guilty of assault with a deadly weapon, to wit, his truck, and brandishing a
knife after he pursued the cyclist through the streets of East Sacramento, struck the bike,
and pulled out a knife. On appeal, he contends there is not substantial evidence to
support the jury’s finding that he brandished a deadly weapon, the court failed to instruct
the jury sua sponte on self-defense, and his lawyer provided inadequate representation by
failing to assert self-defense. Finding no merit to his appeal, we affirm.


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                                             I
       Because defendant challenges the sufficiency of the evidence, we will report the
facts derived from the entire record in the light most favorable to the prosecution and
draw all inferences in support of the judgment. (People v. Bolden (2002) 29 Cal.4th 515,
553; People v. Wader (1993) 5 Cal.4th 610, 640.) As defendant points out, the evidence
must be reasonable, credible, and of solid value to meet the prosecution’s burden to prove
each element of each crime beyond a reasonable doubt. (People v. Cuevas (1995)
12 Cal.4th 252, 260-261.) As a court of review we are not at liberty to reweigh any of the
evidence, including the credibility of the witnesses, or to superimpose our judgment on
reasonable findings by the trier of fact. (People v. Thomas (1992) 2 Cal.4th 489, 514;
People v. Poe (1999) 74 Cal.App.4th 826, 830.) With these basic principles in mind, we
turn to the evidence as to what occurred on the evening of October 24, 2011.
The Evidence
       Johann Karkheck, a seasoned bicyclist, was riding his bike home after work as he
did every day. He did not own a car. As he rode east on Folsom Boulevard, a truck
passed him and then accelerated, leaving a thick cloud of smoke in his face. He kept
riding but was again hit with a cloud of smoke. He saw passengers in the truck pointing
at him and laughing, and believing the driver was intentionally creating the smoke, he
became angry and “flipped . . . off” the occupants.
       As Karkheck passed the truck, he “high-fived” the passenger-side mirror. He
stopped at a red light, and as the truck approached, one of the occupants yelled out,
“[H]ey, you broke the mirror.” Karkheck responded, “That’s what you get for being a
jerk.” He acknowledged at trial that his behavior only inflamed the situation. The
passenger jumped out of the truck and struck Karkheck on the left side of his head.
Karkheck grabbed his bike lock and instructed the passenger to get away. By then, the
driver had run up to him aggressively and tried to grab him, and two other passengers
followed and were yelling at him, but Karkheck jumped on his bike to escape.

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       A supermarket clerk observed the incident and confirmed Karkheck’s account of
what transpired at the stoplight. He, too, testified that the passengers in the truck were
yelling at the cyclist, one of the passengers jumped out of the truck and punched the
cyclist in the head, and the driver also approached the cyclist. Two other passengers
exited the truck as well, but the cyclist did not fight back. Instead, he fled on his bike.
       Defendant pursued him. A commuter corroborated Karkheck’s account of the
pursuit. Karkheck eventually cut across traffic, intending to ride into a pedestrian tunnel,
but defendant followed closely and struck him with the truck. Karkheck was thrown over
the handlebars and into a fence near a driveway. Defendant’s son got out of the truck,
pushed Karkheck through the fence, and began kicking Karkheck as he lay on the ground.
Karkheck grabbed the young man’s crotch to get up, at which point the man picked up
Karkheck’s bike and slammed it into the ground.
       A local attorney escorted Karkheck into his office to call the police. Worried that
defendant would leave the scene, Karkheck went back outside to get defendant’s license
plate number. As he walked forward, he encountered defendant about six feet away with
a knife blade pointed at him. Both he and the attorney told the jury that defendant
appeared angry, although he did not slash or stab at Karkheck, who felt threatened and
feared being attacked. Karkheck put up his hands to demonstrate he was not going to
fight, and he retreated to the office. Shortly thereafter, he emerged to write down
defendant’s license plate number. Defendant left the scene. Karkheck suffered minor
injuries to his hands, his left elbow, and his left ankle.
       In a telephone interview with an investigative police officer following the incident,
defendant denied being involved. Indeed, he denied being in Sacramento at all. Cell
phone records demonstrated that he was in the vicinity of the incident.
       Defendant did not testify, and no one testified on his behalf. Defense counsel
conceded identity but argued that the prosecution had not sustained its burden of proving
assault with a deadly weapon or brandishing a deadly weapon beyond a reasonable doubt.

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A jury found otherwise. Defendant was convicted of both counts and sentenced to three
years in prison, with an additional year for having served a prior prison term.
Analysis
       Defendant contends there is insufficient evidence that he brandished a deadly
weapon because, although he was angry, he did not display his knife in an angry manner.
In effect, defendant would have us conclude that an angry person pointing a knife at a
victim does not constitute substantial evidence to support a jury finding of brandishing a
deadly weapon. The argument is utterly without merit.
       Penal Code section 417, subdivision (a)(1) provides: “Every person who, except
in self-defense, in the presence of any other person, draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any
manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is
guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than
30 days.”
       Defendant reargues the evidence, failing to distinguish our role from that of the
jury. He insists the evidence is insufficient because he made no attempt to stab at the
victim; rather, he simply stood by his truck with the knife at his side. In his view, he
neither threatened the victim nor used the knife in an angry manner. He forgets that the
jury heard this very same evidence and rejected the inference he urges once again on
appeal. It is the jury’s prerogative, not ours, to draw reasonable inferences from the
evidence presented at trial. The scope of appellate review, as recounted above, is very
narrow, and in this case our task is a simple one—to determine whether there is
substantial evidence to support the jury finding that defendant exhibited his knife in an
angry or threatening manner.
       The victim and the lawyer who witnessed the incident both testified that defendant
was angry, and the victim testified that he felt threatened. Given that defendant had
chased a fleeing cyclist for several blocks in his truck and in doing so crossed over

                                              4
several lanes of traffic, and appeared with a knife after his son had been kicking and
beating the downed cyclist, the jury certainly could reasonably conclude that defendant
had exhibited the knife in an angry or threatening manner. The witnesses’ testimony,
particularly when viewed in the context of the escalating series of events culminating in
knocking the cyclist off his bike, constitutes not only substantial, but overwhelming,
evidence to support the jury verdict.
                                               II
       At trial, defendant wisely did not contest identity or assert self-defense, a claim
that in all probability would have alienated the jury. Nevertheless, on appeal defendant
now asserts that the trial court committed reversible error by failing to instruct the jury
sua sponte on self-defense, and his lawyer was incompetent for failing to assert self-
defense at trial. Neither the court, nor defendant’s lawyer, failed him. The flimsy, indeed
far-fetched, evidence that the victim had become the aggressor, justifying defendant’s
resort to brandishing a deadly weapon, does not constitute substantial evidence to trigger
the trial court’s sua sponte obligation to instruct on a defense defendant did not rely on.
Nor is there any reasonable probability that such a defense would have prevailed, and
therefore, defendant cannot demonstrate the requisite prejudice to support his
incompetency claim.
       A trial court’s sua sponte duty to give an instruction on a defense not urged by a
criminal defendant arises “ ‘only if it appears that the defendant is relying on such a
defense, or if there is substantial evidence supportive of such a defense and the defense is
not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v.
Breverman (1998) 19 Cal.4th 142, 157. italics added by Breverman.) “In determining
whether the evidence is sufficient to warrant a jury instruction, the trial court does not
determine the credibility of the defense evidence, but only whether ‘there was evidence
which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’
[Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.)

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       It is true that the cyclist, by his own admission, demonstrated poor judgment in
making an obscene gesture, telling the passenger he was a jerk, and “high-fiving” the
passenger-side mirror on the truck. But the question is whether these indiscretions in the
context of the entire episode constituted the requisite quantum of evidence necessary to
trigger the trial court’s sua sponte obligation to instruct on self-defense. We conclude the
evidence falls woefully short.
       To concede that the cyclist was not blameless is not a concession there was
substantial evidence he became aggressive and dangerous. The facts are to the contrary.
After defendant’s son first struck the cyclist in the head at the stoplight, defendant
himself jumped out of the truck and approached him in a menacing manner. At that point
the cyclist, feeling threatened, got on his bike and pedaled feverishly to escape. Thus,
whatever might be said about his initial actions that might have provoked defendant, the
cyclist certainly did nothing to further agitate him or to threaten him with any physical
force. Nevertheless, as the cyclist tried to escape, defendant pursued him in his truck. A
witness testified defendant crossed over lanes of traffic in a reckless attempt to reach him.
Again the cyclist did nothing to encourage or provoke the pursuit; rather, he tried to get
away. Unfortunately, he was unsuccessful and defendant ultimately struck the bike with
his truck.
       Despite defendant’s relentless pursuit of the victim, he now argues that the tables
had turned by the time he flicked open his knife. He insists the evidence that the victim
started walking toward him after leaving the lawyer’s office gave him the right to pull out
a knife in self-defense. We disagree.
       The standardized instruction on self-defense provides, in relevant part: “The
defendant acted in lawful self-defense if:
       “1.    The defendant reasonably believed that he was in imminent danger of
suffering bodily injury or was in imminent danger of being touched unlawfully;



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       “2.    The defendant reasonably believed that the immediate use of force was
necessary to defend against that danger;
       “AND
       “3.    The defendant used no more force than was reasonably necessary to defend
against that danger.” (CALCRIM No. 3470.)
       The victim testified that he walked out to get defendant’s license plate number to
provide to the authorities. Defendant can point to no evidence that the victim appeared
aggressive or angry as he attempted to memorize the number, that he was wielding any
kind of instrument or weapon, or that he did anything whatsoever that was threatening.
Rather, defendant emphasizes that he merely stood by his truck with his knife at his side
and ignores all of the evidence that he became the aggressor when pursuing a cyclist on
his bike, hitting him with the truck, and then arming himself. We conclude there simply
was no substantial evidence that would have supported a jury finding that defendant
reasonably believed he was in imminent danger of suffering bodily injury or that he could
have reasonably believed the immediate use of force was necessary to defend against the
danger the victim presented. In the absence of some evidence that defendant was in
imminent danger, the trial court had no sua sponte duty to instruct on self-defense.
       Nor did trial counsel shirk his constitutional responsibility to provide competent
counsel by failing to ask the court to instruct on a bogus defense. No one disputes the
basic principle of law that a criminal defendant does not receive constitutionally adequate
legal assistance if defense counsel’s failure to request an instruction results in a
withdrawal of a potentially meritorious defense. (People v. Ledesma (1987) 43 Cal.3d
171, 215-218.) As explained above, there is no substantial evidence that self-defense was
a potentially meritorious defense. To the contrary, the inference defendant urges us to
draw that he was in imminent danger from the mere fact the cyclist walked out of the
office and in his direction strains credulity. The lawyer had no obligation to assert a



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defense based on such a weak inference from such a thin thread of evidence. Simply put,
neither the judge nor the lawyer erred by ignoring self-defense as a possible defense.
                                     DISPOSITION
       The judgment is affirmed.



                                                           RAYE              , P. J.



We concur:



      NICHOLSON             , J.



      HOCH                  , J.




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