Filed 8/27/13 P. v. Brown CA2/6
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                    SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                    2d Crim. No. B240983
                                                                             (Super. Ct. No. BA387264)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

RAMUNDIE O. BROWN,

     Defendant and Appellant.



                   Ramundie O. Brown appeals from the judgment following his conviction
by jury of attempted murder and assault with a deadly weapon. (Pen. Code,
§§ 664/187, subd. (a); 245, subd. (a)(1).)1 The jury also found true allegations of
personal weapon use and great bodily injury. (§§ 12022, subd. (b)(1); 12022.7, subd.
(a).) The trial court found that appellant had one prior serious felony conviction and
served a prior prison term (§§ 667, subds. (a)(1) & (b)-(i); 1170.12, subds. (a)-(d);
667.5, subd. (b)), and sentenced him to state prison for 19 years. Appellant contends
there is insufficient evidence to support his convictions, and the prosecutor committed
prejudicial misconduct. We affirm with instructions directing the superior court clerk
to correct the abstract of judgment to reflect that appellant was convicted by jury.


         1
         All statutory references are to the Penal Code unless otherwise stated. The
abstract of judgment incorrectly states that appellant was convicted by plea.
                  FACTUAL AND PROCEDURAL BACKGROUND
              Richard Thompson, the victim, lived with his mother in a house behind a
mixed martial arts (MMA) gym on Melrose Avenue in Los Angeles. Appellant trained
at the same gym, and often worked with trainer Steve Arce (Steve). Thompson, an
experienced MMA trainer, testified he was too old to "do the fighting," but practiced
fighting "every day." He drank beer and vodka daily, and was an alcoholic. MMA
trainer Haruntun Khachatryn (Haruntun) testified that Thompson could perform
difficult training exercises extremely well while intoxicated. Appellant, an
accomplished MMA fighter, specialized in boxing, and competed in matches daily.
              At various times, Thompson, Haruntun, or other trainers took care of the
MMA gym while its owner was unavailable. On July 31, 2011, Thompson told Steve
the gym was not a motel, and that he could not sleep there. The same day, by his own
estimate, Thompson drank about seven cans of beer, three bottles of vodka and several
40-ounce bottles of beer.
              On the evening of July 31, while he was drunk, Thompson noticed the
gym windows were broken. He entered the gym to check, and found Steve, a naked
woman, and another man, later identified as appellant. Thompson told them to leave.
One of them said, "[Y]ou're just an alcoholic." The last things Thompson recalled
were "[h]itting . . . [appellant], finishing [his] drink, blacking out, . . . [and] waking up
in the hospital." Thompson had punched appellant in the face with a closed fist when
appellant was sitting on a bench near the gym, on Melrose. Appellant's face was
bleeding near his eye.
              Haruntun drove by, and saw appellant and Thompson on Melrose,
outside the gym, facing each other and arguing loudly. Addressing Haruntun,
Thompson said, "I need you right now." Haruntun parked his car behind the gym, and
entered through its back door. As he walked through the gym toward Melrose, he saw
Steve inside, "cleaning up his sleeping bag." Haruntun continued outside, where
appellant was "in a fighting stance," with his fists in front of him, facing Thompson.



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Standing with his arms outstretched, and his palms facing up, Thompson said, "If
you're going to hit me, hit me. Go ahead. Hit me." Haruntun was behind appellant.
Thompson told appellant to turn around. He turned toward Haruntun, then turned back
toward Thompson, and resumed his fighting stance.
              Appellant said, "I'm going to go get something," and left. He "went
down the stairs, through the sidewalk . . . to [a] driveway that le[d] to the back parking
lot." Appellant returned quickly, and lunged toward Thompson, who was "[j]ust
standing there" with his arms at his sides. From Haruntun's perspective, it looked as if
appellant had punched Thompson's left abdomen. Thompson asked, "Is that all you've
got? That's your punch?" Appellant responded, "I didn't punch you." Thompson
raised his shirt, and saw a stab wound. Haruntun then noticed a 3-inch blade
protruding from the sleeve of appellant's "sweat jacket." Appellant walked westbound
on Melrose. Haruntun did not see him again that night.
              Haruntun called 911. Los Angeles Police Detective Greg Staats
responded to the 911 call at about 9:20 p.m. He noticed a 2-inch long stab wound in
Thompson's left lower chest /upper stomach area, with "internal parts coming out."
              At approximately 10:00 p.m., seeking help, appellant approached
Detective Staats in a parking lot, about 2.1 miles from the MMA gym. Staats
described appellant as someone with "a lot of upper body strength" who "definitely
worked out a lot."
              Thompson required surgery, and stayed in the hospital for a week. His
attending surgeon testified that a stab wound on the left side of his midsection injured
Thomas's stomach, and pierced the artery that supplies blood to the stomach and
mesocolon.
                                     DISCUSSION
                                  Substantial Evidence
              Appellant contends the evidence is insufficient to sustain his attempted
murder and assault with a deadly weapon convictions. We conclude otherwise.



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              "When the sufficiency of the evidence to support a conviction is
challenged on appeal, we review the entire record in the light most favorable to the
judgment to determine whether it contains evidence that is reasonable, credible, and of
solid value from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] 'Conflicts and even testimony which is subject
to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth
or falsity of the facts upon which a determination depends.' [Citation.] Unless it
describes facts or events that are physically impossible or inherently improbable, the
testimony of a single witness is sufficient to support a conviction. [Citation.]"
(People v. Elliott (2012) 53 Cal.4th 535, 585.) "A reversal for insufficient evidence 'is
unwarranted unless it appears "that upon no hypothesis whatever is there sufficient
substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43
Cal.4th 327, 357.)
              Appellant first argues that sufficient evidence is lacking because
Thompson "was the aggressor," and appellant "acted in self-defense." We disagree.
              Killing in self-defense is justified only if the defendant actually and
reasonably believed that it was necessary to prevent imminent harm. (§ 198; People v.
Humphrey (1996) 13 Cal.4th 1073, 1082.) Whether the defendant's belief was
reasonable is measured objectively, "'from the point of view of a reasonable person in
the position of defendant . . . .' [Citation.]" (Humphrey, at p. 1083.) "'"Self-defense
may be resorted to in order to repel force, but not to inflict vengeance. . . ."
[Citation.]'" (People v. Jones (1963) 215 Cal.App.2d 341, 345.)
              The jury was properly instructed on self-defense. (CALCRIM Nos. 505,
3470, 3471, 3472, 3474.) It rejected that theory and convicted appellant. Substantial
evidence supports the convictions. Thompson punched appellant only one time, while
he was seated on a bench. Appellant stood, assumed a fighting stance, and faced
Thompson. Thompson urged appellant to hit him. Appellant said he was going "to go



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get something," and left. He returned with a concealed knife, and became the
aggressor. He lunged at Thompson, who "[j]ust standing there" with his arms at his
sides, and stabbed his abdomen. From that evidence, the jury could reasonably infer
that appellant stabbed Thompson out of revenge, and not in self-defense.
               We also reject appellant's claim that there is insufficient evidence of his
intent to kill Thompson. The "intent to kill . . . , the mental state required to convict a
defendant of attempted murder, may . . . be inferred from the defendant's acts and the
circumstances of the crime. . . . '"Such intent must usually be derived from all the
circumstances of the attempt, including the defendant's actions."'" (People v. Smith
(2005) 37 Cal.4th 733, 741.) Appellant stabbed Thompson's abdomen with sufficient
force to inflict internal stomach injuries, and puncture the artery that feeds the stomach
and mesocolon. Substantial evidence supports the finding that appellant intended to
kill Thompson. (People v. Moore (2002) 96 Cal.App.4th 1105, 1114; People v.
Bolden (2002) 29 Cal.4th 515, 561 ["In plunging the knife so deeply into such a vital
area of the body of an apparently unsuspecting . . . victim, defendant could have had
no other intent than to kill"].)
               In challenging the sufficiency of the evidence, appellant also argues
Thompson's testimony was unreliable because his intoxication on July 31, 2011,
interfered with his perception of the incident. We disagree. Other evidence supports
the judgment, including extensive eyewitness testimony about the stabbing, and
medical evidence concerning the stab wound and the extent of Thompson's injuries.
               Appellant further claims that Thompson's intoxication while testifying
rendered him incapable of offering competent evidence. He would, therefore, have
this court disregard his testimony in determining the sufficiency of the evidence. The
trial court summarily and correctly ruled on the same point. Thompson testified about
the amount of alcohol he consumed before testifying, the court observed his condition,
and impliedly found him a competent witness. (Evid. Code, § 702.) From that point




                                             5
forward, it was for the jury to place such weight upon his testimony as it saw fit.
(People v. Gipson (2004) 117 Cal.App.4th 1065, 1071-1072.)
                          Attempted Involuntary Manslaughter
              Appellant also asks this court to reduce his conviction to attempted
manslaughter "because the record supports at least a finding appellant had an actual
but unreasonable belief in the need to defend himself against great bodily injury or
death." We decline to do so.
              In claiming he had "an actual if arguably unreasonable belief in the need
to defend himself . . . in this attack initiated by Thompson," appellant cites People v.
Booker (2011) 51 Cal.4th 141, 182. Booker simply addressed the need for imperfect
self-defense instructions. (Ibid.) Appellant's jury was properly instructed on imperfect
self-defense, as well as self-defense, and it rejected both theories. (CALCRIM Nos.
460, 570, 604.) Although section 1260 empowers this court to "reduce the degree of
the offense or attempted offense" we will not exercise that power here, where
substantial evidence supports the judgment. (People v. Torres (1963) 214 Cal.App.2d
734, 740.)
                               Prosecutorial Misconduct
              Appellant argues that prosecutorial misconduct compels the reversal of
his convictions. We conclude otherwise.
              A prosecutor's misconduct violates the federal Constitution when it
comprises a pattern of conduct so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th
800, 819.) Conduct of a prosecutor that does not make the trial fundamentally unfair
is prosecutorial misconduct under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade the court or jury. (Ibid.)
              Appellant first claims that the prosecutor engaged in misconduct because
"the prosecutor . . . delayed turning over evidence to the defense." Among other
things, this claim concerns information that prosecution witness Haruntun provided in



                                            6
answering a question. (He testified that there had been one incident where appellant
was hostile and "there was . . . flailing of a sword . . . .") Defense counsel immediately
asked to approach the bench and objected that the prosecutor had not disclosed that
information. After the prosecutor explained she had no prior knowledge of the flailing
sword incident, the trial court properly concluded there was no "discovery violation
because the People just found out about it, too," and ordered the prosecutor to
interview Harunton to avoid any further surprises. (§ 1054.7.) The next day, defense
counsel complained that the prosecution had given him two new statements from
Haruntun, one new statement from the victim, as well as statements from officers. The
court considered his claims. The record supports its conclusion that the prosecutor
was meeting her discovery obligation to provide newly discovered information to
defense counsel upon its discovery. (§ 1054.7.)
              Appellant also contends that the prosecution's improper referral to his
shirt as a "wife-beater" constituted prejudicial misconduct. The reference occurred
during the prosecution's direct examination of a detective. The relevant exchange
follows:
              "Q[.] . . . [I]s that how [appellant] appeared [referring to two exhibits] on
the night that you detained him?
              "A[.] Yes, it does.
              "Q[.] And it looks like he's wearing some type of black tank top?
              "A[.] Yes, that's correct.
              "Q[.] What we commonly refer to as a wife-beater –
              "THE COURT: I'm going to sustain my own objection. He's wearing a
black tank top. "
              We agree the "wife-beater" reference was improper. However, the trial
court immediately sustained its own objection, and the prosecutor made no further
reference to a "wife-beater" shirt. This isolated, brief, improper reference was




                                            7
harmless under any standard of review. (Compare People v. Hill, supra, 17 Cal.4th
800 [involving multiple, egregious acts of prosecutorial misconduct].)
                                   DISPOSITION
             The judgment is affirmed. The superior court clerk is directed to correct
the abstract of judgment to show that appellant was convicted by jury.
             NOT TO BE PUBLISHED




                                         PERREN, J.


We concur:



             GILBERT, P.J.



             YEGAN, J.




                                          8
                                 Henry J. Hall, Judge

                        Superior Court County of Los Angeles

                        ______________________________


             Sally Patrone Brajevich, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C.
Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney
General, for Plaintiff and Respondent.




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