Filed 4/22/13 P. v. Lemus CA4/3




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047118

             v.                                                        (Super. Ct. No. 10WF0903)

DAVID SANTILLAN LEMUS,                                                 O P I N I O N

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Richard
M. King, Judge. Affirmed.
                   Jan B. Norman, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.


                                          *                  *                  *
              Defendant David Santillan Lemus was convicted by a jury of an assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). They acquitted him of charges of
attempted murder and criminal threats, and were unable to reach a verdict on the lesser
included offense of attempted voluntary manslaughter, arising from the same altercation.
The trial court declared a mistrial on that charge and later dismissed it in the interests of
justice (Pen. Code, § 1385, subd. (a)). Defendant was sentenced to the midterm of three
years for the assault with a deadly weapon and ordered to pay restitution and various
fines and fees. He filed a timely appeal.
              We appointed counsel to represent defendant on appeal. While not arguing
against defendant, counsel filed a brief which fully set forth the facts of the case and
advised us there were no arguable issues on appeal. The brief included a review of the
record and consideration of possible arguments, but concluded none of those arguments
had any chance of success.
              We informed defendant he had 30 days to file written argument on his own
behalf. Three months have passed and we have received no such argument. We have
reviewed the record of defendant’s trial and the brief filed by defendant’s counsel, and
find ourselves in agreement with defendant’s counsel: There is no arguable error in the
proceedings against defendant. (People v. Wende (1979) 25 Cal.3d 436.)


                                            FACTS


              Defendant was visiting at his girlfriend’s house when he got into a shouting
match with Anthony Kightlinger. Kightlinger tried to calm him down, but defendant
began yelling that he was going to kill him. Kightlinger invited the much smaller
defendant to “settle the matter outside,” but when he heard another person warn that
defendant had a knife, he closed the security screen door between him and defendant and



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held it shut. Sure enough, defendant was at the door with a large carving knife in his
hand.
               Kightlinger thought he heard the knife drop, but defendant got through the
door with a knife in his hand and stabbed Kightlinger once in the kidney area, once in the
back, and once in the chest. Nonetheless, Kightlinger got the better of defendant and
began kicking him. Defendant fled with his girlfriend. They left so precipitously, she
never went back to the house where she’d been living – the scene of the altercation – and
never picked up her belongings.
               They were found, two years later, in northern Utah. When contacted by the
police, defendant denied ever having been at the crime scene or having taken part in any
fight there. He was extradited for trial. At trial, his defense was that he had acted in self-
defense.
                                       DISCUSSION


               We have carefully scrutinized the trial record. The case against defendant
was overwhelming; indeed, trial counsel pulled off something of a minor miracle in
getting defendant acquitted of the criminal threats (“I’m going to kill you”) and attempted
murder (three stab wounds to the torso) offenses. Defendant not only attacked an
apparently unarmed man (Kightlinger actually had a pocket knife in his pants, but did not
remember it until he’d been stabbed three times) with a knife, he also broke through a
door to pursue the man. It is difficult to make a convincing self-defense claim out of
those facts.
               Viewing the evidence in the light most favorable to the verdict, as we are
required to do (People v. Young (2005) 34 Cal.4th 1149, 1180), we conclude there was
plenty here that was reasonable, credible, and of solid value to support a verdict beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)



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              Appellate counsel obviously devoted a considerable amount of effort to
mounting an appeal based upon ineffective assistance of counsel or prejudicial
misconduct by the prosecution on the issue of defendant’s flight from the scene. While
defendant did not testify, his girlfriend did. She was asked by defendant’s trial attorney
where they went after the crime and said she didn’t recall where they went immediately
afterward. When the prosecutor cross-examined, he brought out the fact they had
decamped to Utah and she never even went back to retrieve her belongings. At that
point, the trial court wisely interrupted cross-examination to appoint counsel for the
witness, concerned that she might be about to incriminate herself under Penal Code
section 32 (harboring a felon). And, after counsel was appointed for her, she refused to
answer any further questions about how she and defendant ended up in Utah.
              So appellate counsel considered the possibility trial counsel had failed to
provide adequate assistance in failing to object to the Utah testimony, the prosecutor had
committed misconduct by referring to the defendant’s apprehension in Utah, and/or the
judge had erred in instructing on it. But appellate counsel correctly abandoned any such
avenues. The testimony they went to Utah and didn’t even stop to get their belongings
was clearly relevant on the issue of consciousness of guilt. While the trial court stopped
that testimony before it finished and commented it was probably beyond the scope of
direct examination, he never struck the testimony, and since the last question asked of the
witness by defendant’s attorney was, “[w]here did you go [after the incident],” it was a
very close call on whether it was beyond the scope of direct.
              All of this means the flight instruction was based on properly received
evidence, trial counsel had little chance of keeping it out entirely and did a good job of
limiting it, and the prosecution had every right to refer to it in closing argument. It also
means appellate counsel was correct in abandoning it as a possible avenue of appeal.
              Counsel also considered arguing the trial court abused its discretion in
sentencing defendant to the midterm of three years for this offense, rather than a low-

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term sentence. We agree with counsel this was a doomed argument. The victim received
three stab wounds in areas where serious injury could have been anticipated. Given the
fact there are many assaults with a deadly weapon that result in no injury whatsoever, and
the singlemindedness with which defendant pursued his victim, the chances of
convincing an appellate court that a mid-term sentence for this offense was an abuse of
discretion are nugatory.
              We find nothing else about the conduct of this trial or the sentencing of
defendant that seems out of the ordinary. The trial was fairly and properly conducted, the
defendant received what we would consider a favorable verdict, and the trial court
sentenced appropriately. Appellate counsel was right: there are no issues on appeal.


                                      DISPOSITION


              The judgment is affirmed.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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