Filed 4/28/15 P. v. Quon CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060223

v.                                                                       (Super.Ct.No. FWV1000501)

MARVIN SHI YUEN QUON,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Stephan G.

Saleson, Judge. Affirmed.

         Lee W. Gale for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.

                                               I. INTRODUCTION

         During a fight with his neighbor, defendant and appellant, Marvin Shi Yuen Quon,

stabbed the neighbor seven times with a tire repair tool. The district attorney charged



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him with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and

alleged that he personally inflicted great bodily injury within the meaning of section

12022.7, subdivision (a). A jury convicted defendant of the charged crime and found the

enhancement allegation not true. Defendant was sentenced to 36 months’ probation on

the condition (among others) that he serve 180 days in custody, 90 days of which would

be on work release.

       On appeal, defendant contends he was deprived of his Sixth Amendment right to

effective assistance of counsel. He further contends his sentence was erroneously based

on a finding the jury had specifically found not true. We reject these arguments and

affirm the judgment.

                   II. FACTUAL AND PROCEDURAL SUMMARY

A. Prosecution Evidence

       Defendant and Richie Cattilini were next door neighbors. On February 5, 2010,

Cattilini was unloading groceries from his truck when defendant drove by in his

Hummer. Defendant flipped Cattilini off and mouthed obscenities toward him. Cattilini

did not say anything to defendant or gesture toward him.

       After defendant parked his vehicle, Cattilini walked to the sidewalk in front of

defendant’s house and asked defendant “what his problem was.” Defendant told Cattilini

he was “an asshole.” Cattilini had his hands in his pocket because he did not want to

appear threatening. He did not have a weapon.




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       The two began arguing. Defendant told Cattilini “he was going to kick

[Cattilini’s] ass”; Cattilini responded, “Well, I’m standing right here.” After more words

were exchanged, defendant gestured to Cattilini to come onto his property. When

Cattilini approached, defendant pointed out a security camera that was recording their

interaction.

       Defendant repeatedly asked Cattilini to hit him. Unbeknownst to Cattilini,

defendant held a weapon behind his back in his left hand.

       As Cattilini turned and began to walk away, defendant followed him and pushed

Cattilini’s right shoulder. Cattilini continued to walk away. Defendant then hit Cattilini

in his lower back. Cattilini turned and told defendant to “keep his fucking hands off”

him. Defendant then hit Cattilini in the abdomen and neck. Cattilini responded by

hitting defendant in the face, knocking defendant off balance.

       Defendant lunged at Cattilini, striking him in the neck and abdomen. Cattilini hit

defendant in the face a second time, knocking defendant to the ground. Cattilini backed

away. Defendant got up and lunged at Cattilini again.

       The fight moved into the street. Cattilini told defendant to stop, but defendant

continued to throw punches.

       Cattilini noticed blood coming from underneath his shirt near his waistband. He

then saw a “steel shaft” in defendant’s hand and realized that defendant had been

stabbing him. At that point, Cattilini went to his house and called 911.




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         Cattilini suffered four puncture wounds in his abdomen, one in his neck, and two

in his right hand. A treating physician testified that one of the stab wounds penetrated

Cattilini’s abdominal cavity. He said that the weapon went up to the tissue that covers

the kidney, but did not penetrate the kidney. If it had, it could have caused Cattilini’s

death.

         Two silent video recordings of the incident, one in slow motion and one in “full

speed,” were played to the jury. The actions shown are consistent with Cattilini’s

description of the event.

         Riverside County Deputy Sheriff Anthony Thomas interviewed defendant.

Defendant identified a “tire tool” he used to “jab” Cattilini during the fight. Deputy

Thomas and two other deputies testified that although defendant spoke with them about

the altercation on the day it occurred, defendant did not tell the officers that he believed

Cattilini had a gun or weapon of any type that day. Nor did defendant mention to any of

the deputies that Cattilini had ever threatened to kill defendant’s family or tried to get

into defendant’s home.

B. Defense Evidence

         Defendant’s daughter Peggy testified that there were bad feelings between

defendant and Cattilini because Cattilini was a “racist.” He would call defendant “‘a

stupid Chinaman’” and cuss at defendant.

         On the day of the altercation, Peggy and a friend were in defendant’s car as they

pulled up to their house. She did not see defendant “flip off or say anything derogatory to


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Mr. Cattilini.” As they pulled into their driveway, Cattilini followed them to the

sidewalk in front of their house. Cattilini had his hands in his pockets and yelled,

“‘Marvin, Marvin, Marvin.’” Defendant told Peggy and her friend to go inside the house,

which they did. Peggy watched the fight from inside the house. She described Cattilini

as “threatening” and said she was personally afraid of him. She saw Cattilini kick

defendant, then saw them fighting.

       Defendant testified that the animosity between him and Cattilini began shortly

after he moved to the neighborhood in December 2003. He described disputes involving

complaints by Cattilini concerning defendant’s dogs, defendant’s alleged use of a

jackhammer on an Easter Sunday morning, and water draining from defendant’s property

onto Cattilini’s property. Defendant referred to incidents in which Cattilini used racial

slurs against him, such as “stupid Chinaman” and “fucking chink.” Cattilini also

threatened to kill defendant’s family. Defendant bought a fire escape ladder and a

security camera because he feared for his life. He also said he is certified in Tai Chi, a

self-defense discipline.

       Regarding the events of February 5, 2010, defendant said he did not flip off

Cattilini or cuss at him. After parking in his garage, he heard Cattilini say “‘Marvin,

Marvin, Marvin.’” Cattilini had his hands in his pockets, which made defendant believe

Cattilini had a weapon. Defendant armed himself with the tire repair tool because he

believed Cattilini had a weapon in his pocket and “just in case . . . something happened.”

Defendant is right-handed and held the tool in his left hand.


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       Defendant did not ask Cattilini to come onto his property; rather, Cattilini told

defendant to come to him so that, as defendant put it, “he can kick my chink ass.”

Defendant told him, “You want to kick my ass? Come here. I’m here.” Cattilini then

came toward defendant in an aggressive manner. Defendant pointed out the security

camera to Cattilini and told him, “‘don’t do anything stupid.’” He put the tire repair tool

behind his back so that Cattilini would not “see [his] weapon.”

       When defendant told Cattilini to get off his property, Cattilini kicked defendant in

his thigh. A physical fight ensued in which Cattilini struck defendant and defendant used

his hands to block defendant’s punches. The only part of Cattilini’s body defendant

made contact with was Cattilini’s hand.

                                    III. DISCUSSION

A. Right to the Effective Assistance of Counsel

       Defendant contends he was denied his constitutional right to the effective

assistance of counsel.

       “Under both the Sixth Amendment to the United States Constitution and article I,

section 15, of the California Constitution, a criminal defendant has the right to the

assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “In order to

demonstrate ineffective assistance of counsel, a defendant must first show counsel’s

performance was ‘deficient’ because his ‘representation fell below an objective standard

of reasonableness . . . under prevailing professional norms.’ [Citations.] Second, he must

also show prejudice flowing from counsel’s performance or lack thereof. [Citations.]


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Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 357; see Strickland v.

Washington (1984) 466 U.S. 668, 687-688.)

        Our review of counsel’s performance is “highly deferential” (Strickland v.

Washington, supra, 466 U.S. at p. 689), and “there is a ‘strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.’ [Citation.]”

(People v. Lucas (1995) 12 Cal.4th 415, 437.) The burden of overcoming this

presumption “is difficult to carry on direct appeal . . . : ‘“Reviewing courts will reverse

convictions [on direct appeal] on the ground of inadequate counsel only if the record on

appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her]

act or omission.”’ [Citation.]” (Ibid.) If “the record on appeal sheds no light on why

counsel acted or failed to act in the manner challenged,” the claim on appeal must be

rejected “unless counsel was asked for an explanation and failed to provide one, or unless

there simply could be no satisfactory explanation . . . .” (People v. Pope (1979) 23

Cal.3d 412, 426, fn. omitted; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264,

266.)

        Defendant identifies numerous instances in which his trial counsel was allegedly

deficient. We address each in turn.




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       First, defendant asserts that counsel promised in his opening statement that he

would present a version of the facts that contradicted Cattilini’s version and produce

“‘four or five witnesses’” to demonstrate the difference; but counsel ultimately produced

only two witnesses. We reject this argument. Defendant’s trial counsel actually said he

would produce “probably four or five witnesses,” and qualified that by saying that he did

not want to be cumulative or “repeat the same information from four sources, because

that’s really counterproductive.” (Italics added.) He further explained that “even though

I say we have five witnesses, you may not hear five witnesses because I have to judge as

an attorney and as an advocate of [defendant] at what point have I made my point.”

       By producing only two witnesses, counsel may have determined, as he indicated

he might, that he had made his points with the two witnesses he produced and that

additional witnesses would have been cumulative and counterproductive. Because there

could be a satisfactory reason why counsel did not call additional witnesses, this claim

must be rejected. (See People v. Pope, supra, 23 Cal.3d at p. 426.)

       Next, defendant states that counsel promised to produce, and did produce,

evidence related to certain prior disputes between the neighbors, “which was in no way

relevant to the incident here involving an assault.” He refers us to evidence regarding a

drainage dispute, a dispute regarding a real estate transaction involving defendant and

Cattilini’s wife, and a complaint by Cattilini regarding defendant’s alleged use of a

jackhammer. However, counsel may have offered such evidence to contradict Cattilini’s

testimony regarding these prior events to damage Cattilini’s credibility—if Cattilini lied


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about these prior incidents, perhaps he was lying about the assault. Even if such evidence

was irrelevant, defendant fails to explain how the presentation of such irrelevant evidence

was prejudicial.

       Defendant further argues that his trial counsel promised to produce two Asian

witnesses who would testify about their feelings toward Cattilini. Counsel was deficient,

he contends, because such evidence was irrelevant and he failed to produce the promised

witnesses. Initially, we note that if, as he asserts, the promised evidence was irrelevant,

he cannot complain that the evidence was not introduced; counsel cannot be

constitutionally deficient by failing to introduce irrelevant evidence. If he is complaining

that counsel should never have promised to produce the irrelevant Asian witnesses, he

has failed to explain how the decision prejudiced him in any way.

       Defendant next contends that his trial counsel promised to produce the testimony

of defendant’s wife, but failed to do so. The record does not disclose why defendant’s

wife did not testify. It is possible that, after the testimony of defendant and defendant’s

daughter, counsel realized that the testimony of defendant’s wife would have been

cumulative and, as he put it, counterproductive. It is also possible that defendant’s wife

decided she did not wish to testify, or that defendant did not want her to testify. Because

there are possible satisfactory reasons why defendant’s wife was not called to testify, we

reject the claim. Moreover, there is nothing in the record to indicate that defendant’s

wife saw the fight between the neighbors or had anything pertinent to say. We cannot,




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therefore, determine that the decision not to call her as a witness was prejudicial in any

way.

       Defendant next argues that his counsel was deficient by complimenting the

prosecutor on his closing argument. He points to the following, which counsel stated

near the outset of his closing argument: “I complimented [the prosecutor] on a very

excellent, excellent closing argument. I’ve never seen a better one. After 43 years, that’s

the best I’ve ever seen. I compliment him. I think he’s a fine prosecutor, and I am not

going to argue strenuously about what he has said.” Later, he referred to the prosecutor’s

“admirable job” in presenting the People’s case.

       Defendant offers no authority for the assertion that an attorney is constitutionally

deficient when he or she compliments the opposing counsel. Moreover, as the Attorney

General points out, there may have been tactical reasons for doing so. By complimenting

the prosecutor on his closing argument, defense counsel may have suggested that the

apparent strength of the prosecution’s case was the attorney’s performance, not the truth

of the charges. Counsel may also have decided to acknowledge what the jurors may have

been thinking—that the prosecutor’s performance was indeed excellent—thereby

enhancing his own credibility in the jurors’ eyes. Because there could be satisfactory

reasons for complimenting the prosecutor, and defendant has failed to make any showing

of prejudice from such comments, we reject this claim.

       Defendant next claims that his trial counsel misstated Cattilini’s testimony. In his

closing argument, defense counsel discussed the video equipment defendant had


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installed, then stated: “Now, on the same token, there was testimony on the part of Mr.

Cattilini that he, too, had video—I’m sorry—camera equipment. We don’t know what

type, if it was video or whatever . . . .” Defendant claims that this is incorrect because

Cattilini testified that he did not install a camera to take pictures of defendant’s property.

We agree with the Attorney General that the misstatement of fact was minor. Indeed,

after the statement, counsel immediately moved on to other matters. It does not appear to

have played any meaningful part in the closing argument. On appeal, defendant merely

asserts the misstatement without any explanation of how it is deficient or prejudicial. He

has failed to establish either.

       Defendant next contends that trial counsel used the phrase “self-defense” only

twice in his closing argument, even though self-defense was a key component of the

defense theory. In the same vein, trial counsel failed to discuss the evidence that

defendant was trained in martial arts for self-defense. We reject these arguments.

Reviewing the argument in its entirety, we cannot conclude counsel’s performance was

constitutionally deficient. Although counsel may have uttered the phrase “self-defense”

only twice, his argument was focused largely on establishing reasons why defendant

feared Cattilini and portraying Cattilini as a racist aggressor in order to characterize

defendant’s actions as defensive. Ultimately, counsel’s argument led to his discussion of

the self-defense instruction and, in particular, the part that stated: “‘If you find that

Richie Cattilini threatened or harmed the defendant or others in the past, you may

consider that information in deciding whether the defendant’s conduct and beliefs were


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reasonable.’ Someone who has been threatened or harmed by a person in the past is

justified in acting more quickly, taking greater self-defense measures against that

person.” (See CALCRIM No. 3470.) Counsel’s failure to discuss defendant’s martial

arts training may have been a tactical decision based on the possible perception that it

would portray defendant as an aggressor.

       Defendant was sentenced on December 20, 2013, to three years’ probation on the

condition that he serve 180 days in custody, to begin on January 8, 2014. The 180 days

was evenly split between jail and work release. When he appeared on January 8, 2014,

his counsel asserted that defendant was “under observation for a number of things having

to do with his heart” and was on an “insulin required program.” He requested that

defendant’s custody begin with electronic monitoring. The court noted that it had not

been told about any medical conditions at the time of sentencing. The court further

stated: “We have doctors available in the jail, and if [defendant] needs medical

assistance, I am certain he will get it. If for some reason he doesn’t get the service that’s

needed, he can let you know, [counsel]. You will let me know, and we’ll go from there.”

       On appeal, defendant contends that counsel should have raised his medical issues

at the time of sentencing. Even if defendant’s medical conditions should have been

raised earlier, defendant fails to establish any prejudice. As the court stated, there are

doctors available to the inmates and defendant would receive medical assistance if he

needed it. There is no reason to believe that the court’s sentencing order would have

been any different if the issue had been raised earlier.


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       Finally, defendant states that “[c]ounsel was untimely in filing papers, and

neglected to file a pre-trial brief, witness or exhibit list, or any pre-trial motion. Counsel

further neglected to advocate for a jury instruction on lesser included offenses which may

have mitigated the [defendant’s] felony exposure.” These assertions are made without

any citations to the record, without identifying any possible pretrial motions or lesser

included offenses, and without any discussion of how the alleged failures resulted in

prejudice. We cannot, therefore, evaluate the merits of these claims.

B. Sentencing: Court’s Reference to Great Bodily Injury Likely

       At the sentencing hearing, the court stated the following: “You will be placed on

formal probation, [defendant], for three years, sir, for Assault with a Deadly Weapon, not

a firearm, great bodily injury likely . . . .” Defendant contends the court’s reference to

“great bodily injury likely” was error because the jury found not true the enhancement

allegation that he personally inflicted great bodily injury upon Cattilini.

       As the Attorney General points out, defendant did not object to the court’s

statement at the sentencing hearing. The claim is therefore forfeited on appeal. (See

People v. Scott (1994) 9 Cal.4th 331, 353.) Even if it was not forfeited, we would reject

it. The court’s statement appears to be based on the probation report, which refers to

defendant’s crime of “Assault With a Deadly Weapon, Not Firearm, or Force: Great

Bodily Injury Likely, in violation of [Penal Code] Section 245[, subdivision] (a)(1) . . . .”

This, in turn, appears to be a reflection of the title of the statute defendant violated, Penal

Code section 245, which states: “Assault with deadly weapon or force likely to produce


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great bodily injury . . . .” The probation report makes clear, however, that “the jury did

not find the enhancement of great bodily injury true.” It therefore does not appear that

the probation officer or the court based the sentence upon a misperception that the

enhancement allegation was found true.

                                    IV. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                             J.


We concur:

RAMIREZ
                        P. J.

McKINSTER
                           J.




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