Filed 6/22/15 P. v. Baker CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


THE PEOPLE,

     Plaintiff and Respondent,                                         G048818

         v.                                                            (Super. Ct. No. 11ZF0104)

ADAM RANDY BAKER,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Francisco
P. Briseño, Judge. Affirmed in part, reversed in part and remanded for resentencing.
                   Law Offices of William J. Kopeny and William J. Kopeny for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              This case illustrates the wisdom of the advice mothers and football coaches
often give: Nothing good happens after midnight.
              The indictment in this matter charged defendant Adam Randy Baker with
the murder of Robert Sickles (Pen. Code, § 187, subd. (a); count one; all undesignated
statutory references are to the Penal Code), the attempted murder of Brian McTeigue (§§
187, subd. (a), 664, subd. (a); count two), and assault with a deadly weapon (§ 245, subd.
(a); count three). It further alleged defendant personally used a knife (§ 12022, subd.
(b)(1)) in the commission of the offenses charged in counts one and two, and personally
inflicted great bodily injury (§ 12022.7, subd. (a)) on McTeigue. Prior to the taking of
evidence, the court granted the prosecution’s motion to dismiss the assault charge.
              The jury found defendant guilty of murder, attempted murder, and found
the weapon enhancements true. The court sentenced to a total of 16 years to life on the
murder, consisting of 15 years to life plus one year on the section 12022, subdivision
(b)(1) enhancement attached to the murder charge. The court then sentenced defendant to
one-third the middle term (two years and four months) on the attempted murder, one-
third the term provided for the knife enhancement attached to the attempted murder
charge (four months), and ordered the sentence on the attempted murder and the attached
enhancement to run consecutively to the term imposed on the murder count.
              Defendant appeals, claiming prosecutorial misconduct, ineffective
assistance of counsel, and the failure to instruct on a lesser included offense require
reversal. We find defendant’s arguments unpersuasive. However, we sought and
obtained supplemental briefing from the parties on whether the trial court imposed an
unlawful sentence (see People v. Neely (2009) 176 Cal.App.4th 787, 798-799 [manner
sentences are to be calculated when court sentences on indeterminate and determinate
terms]) on the attempted murder and its concomitant enhancement. We have considered
the supplemental briefs and conclude the sentence imposed by the court is unauthorized.



                                              2
We therefore remand the matter for resentencing on the attempted murder conviction and
the enhancement attached to that conviction.
                                               I
                                          FACTS
              On New Year’s Eve 2010, Robert Sickles and David Hanlin, his younger
half brother, went to a party at the Hilton Hotel in Costa Mesa with some friends,
including Brian McTeigue and Kevin Stacey. It was Stacey’s birthday. There was a very
large party at the hotel. The line to get into the party went around a parking structure and
up to the second floor. The group stayed together and did not have a problem with
anyone inside the party. At closing time, about 1:50 or 2:00 a.m., people started leaving
the party. Sickles and Hanlin left first, with McTeigue and Stacey about 20 feet behind
them.
              Hanlin and Sickles walked toward the valet area to get their group together
to wait for a taxi. They were laughing and having a good time. Then someone tossed a
cigarette that landed between Hanlin’s legs. When Hanlin looked to his right to see
where it came from, he heard, “What the F are you looking at?” He did not realize he
was the person to whom the statement was made because he had not had contact with
anyone outside his group. He continued to look around and defendant charged toward
Hanlin, repeating the question. Sickles stepped in front of Hanlin and told defendant to
calm down and to sit down. Defendant hit Sickles in the face without warning. Sickles
asked, “What the F,” and punched defendant back.
              McTeigue and Stacey heard a commotion as they exited the hotel and went
to see what it was. Defendant and Sickles were “basically” shoving and wrestling. It
reminded McTeigue of two boxers in a clench. Stacey saw defendant pull out something
and start swinging at Sickles with his right arm, striking Sickles in the chest. Hanlin
heard Stickles say, “He F’ing stabbed me.” McTeigue ran to Sickles, shoved defendant



                                             3
away from Sickles, and attempted to get Sickles out of the area. Defendant swung and hit
McTeigue in the back. Hanlin went to defendant and punched him once, knocking
defendant down. Hanlin was already backing away from defendant when defendant
rolled over onto his hands and knees. Defendant had a knife in his hand. As Hanlin
backed away, McTeigue ran past him and kicked defendant, causing defendant to go onto
his back.
                Hanlin then went to Sickles, who “was just bleeding everywhere.” The
group ran with Sickles about 50 yards before he collapsed. Hanlin tried to stop the
bleeding, but he could not apply enough pressure and blood sprayed through his fingers.
                When the paramedics arrived, they asked for McTeigue’s shirt to stop
Sickles’s bleeding. At that point, McTiegue realized he had been stabbed in the back and
was bleeding too.
                A pathologist who supervised Sickles’s autopsy testified the knife entered
Sickles’s left chest about midchest and once lower on the left side of his chest. The lower
wound was not fatal and penetrated only about three-quarters of an inch. The higher stab
wound was lethal. The knife pierced Sickles’s left lung, the pericardial sac, and the
pulmonary artery. Approximately a half gallon of blood was recovered from his left
chest cavity.
                Police recovered a knife from the scene. Blood found at the scene was
tested for DNA. Neither Sickles nor defendant could be excluded as the two contributors
to the blood.
                Police obtained a surveillance video of the incident from the hotel. They
also obtained a cell phone video from a civilian witness. The cell phone video showed
defendant on the ground with something in his hand, defendant starting to get up from the
ground, McTeigue kicking him in the shoulder, and Sickles kicking defendant on the
ground. Once defendant stopped moving, no one accosted him.



                                              4
Defense Evidence
              Defendant testified in his own defense. He said he went to the party at the
hotel because his cousin had an extra ticket, so he could get in for free. Defendant
claimed not to remember whether he had a knife on him or whether he used a knife that
night. According to defendant, he had two beers before the party, and a beer and a shot at
the party. The last thing defendant remembered about that night was walking out of the
hotel. He had “no idea” if he stabbed Sickles and McTeigue.
              Defendant said he received a stab wound to his leg, multiple facial
fractures, and a broken jaw, palate, and nose. He spent six or seven days in the hospital.
              When asked whether he usually carries a knife, defendant said he carries a
knife when he goes fishing. Around the time of the party, he had been fishing four to five
days a week. Although he did not go fishing on New Year’s Eve day, he had intended on
fishing earlier that day.
              On cross-examination, defendant said he “couldn’t say for sure” whether
the Boker Magnum knife recovered at the scene was his. He admitted he owned one
“just like” the one recovered, the knife recovered could be his, and the knife can be easily
opened with one hand. When defendant got out of jail, he went through his belongings
that had been removed from the apartment he was living in at the time of the incident.
He did not find his knife.
              Defendant’s friend Scott Hudson was with him at the party, along with
three other friends. Hudson left the hotel that night with defendant. They sat in two
chairs outside the hotel and attempted to get a taxi. Defendant and Hudson were both
smoking cigarettes outside the hotel. Defendant flicked his cigarette to the ground. They
were both looking at their cell phones at that time and Hudson heard someone say, “Hey,
hey,” and swear at defendant. In his grand jury testimony, and in speaking to a detective
about the incident, Hudson said the person asked defendant, “Dude, what was that



                                             5
about?” Hudson did not mention anyone swearing at defendant. He also admitted his
memory was better when he testified at the grand jury hearing.
              At trial, Hudson said he looked up and saw someone approaching
defendant. Defendant stood up, words were exchanged and there was “a bit of a shoving
match.” Four or five of the other individual’s friends rushed defendant and started
throwing punches at defendant. He said the men continued punching defendant as
defendant backed away. He did not see defendant with a knife. Hudson said he did not
get involved in the fight.
              In his grand jury testimony, Hudson never mentioned individuals rushing
defendant. In fact, he testified defendant stood up and approached Sickles, but he could
not remember who started the shoving and who threw the first punch.
              In his trial testimony, Hudson said he attempted to go to defendant once
defendant was on the ground, but he was not able to do so. He went to where another
friend was standing and they attempted to discover the hospital where defendant was
transported. When they could not, their group went home.
              Nancy Diezmo testified she saw “violence occurring” to a man on the
ground as she drove away from the hotel. She said she saw between five-to-10 punches
and perhaps 10 kicks delivered to the man on the ground, but she did not see what had
happened before that.
              A number of witnesses testified defendant had a reputation for being honest
and nonviolent. The prosecutor cross-examined defense witnesses about defendant’s
tattoos.
              Costa Mesa Police Department Detective Kevin Condon said he
interviewed defendant at the hospital. Defendant gave Condon the brand name of his
knife and asked if it had been used in the incident. Condon said it had, and defendant




                                            6
responded, “Jesus . . . Christ.” Defendant denied remembering anything about the
incident.
                                             II
                                      DISCUSSION
A. Prosecutorial Misconduct
              Although attorneys on both sides are given leeway in discussing the
applicable law, “it is improper for a prosecutor to misstate the law” (People v. Bell (1989)
49 Cal.3d 502, 538), particularly when the misstatement lightens the prosecution’s
burden of proof. (People v. Williams (2009) 170 Cal.App.4th 587, 635.) “Misconduct
that infringes upon a defendant’s constitutional rights mandates reversal of the conviction
unless the reviewing court determines beyond a reasonable doubt that it did not affect the
jury’s verdict. (Chapman v. California (1967) 386 U.S. 18; People v. Hall (2000) 82
Cal.App.4th 813, 817, citing People v. Harris (1989) 47 Cal.3d 1047, 1083.) A violation
of state law only is cause for reversal when it is reasonably probable that a result more
favorable to the defendant would have occurred had the district attorney refrained from
the untoward comment. (People v. Watson (1956) 46 Cal.2d 818; People v. Milner
(1988) 45 Cal.3d 227, 245.) In either case, only misconduct that prejudices a defendant
requires reversal (People v. Fields (1983) 35 Cal.3d 329, 363), and a timely admonition
from the court generally cures any harm. (See People v. Gallego (1990) 52 Cal.3d 115,
200.)” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
              “‘“‘A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it
involves the use of deceptive or reprehensible methods to attempt to persuade either the
trial court or the jury.’ [Citation.] When a claim of misconduct is based on the



                                             7
prosecutor’s comments before the jury, . . . ‘“the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.”’ [Citation.] To preserve a claim of prosecutorial misconduct for
appeal, a defendant must make a timely and specific objection and ask the trial court to
admonish the jury to disregard the improper argument. [Citation.]” [Citation.] A failure
to timely object and request an admonition will be excused if doing either would have
been futile, or if an admonition would not have cured the harm.’ (People v. Linton
(2013) 56 Cal.4th 1146, 1205.)” (People v. Adams (2014) 60 Cal.4th 541, 568-569.) We
review de novo whether misconduct resulted in a constitutional violation. (People v.
Spector (2011) 194 Cal.App.4th 1335, 1403.)
              Defendant contends the prosecutor engaged in a number of instances of
misconduct. We address each instance in turn.
              1. Evidence of Defendant’s Tattoos
              Defendant contends the prosecutor denied the defendant due process by
misusing evidence of defendant’s tattoos as bad character evidence and to impeach
defense character witnesses who testified defendant had a reputation for nonviolence. He
notes ordinary evidentiary rulings are usually reviewed under People v. Watson (1956) 46
Cal.2d 818, 836, but reversal is required under Chapman v. California (1967) 386 U.S.
18, 24, when the rulings denied a defendant a fair trial.
              As noted above, a number of witnesses testified defendant had a reputation
for being honest and nonviolent. The prosecutor questioned four defense witnesses about
defendant’s tattoos. For example, Nathan Arthur, one of defendant’s character witnesses,
was questioned about defendant’s skull and crossbones tattoo, as well as a tattoo of a
knife with a drop of blood on the tip, that defendant had on one of his calves. The
prosecutor asked Arthur whether “anybody else of your peaceful friends have a tattoo of




                                              8
a knife with what appears to be blood dripping off the end of it?” And, whether “any of
your other peaceful friends have skull and crossbones tattooed on them?”
              Hudson, a defense witness who testified about what he saw of the incident,
stated defendant is “not a killer.” The prosecutor then questioned Hudson about his own
tattoos and defendant’s tattoos, asking Hudson if he ever discussed with defendant the
fact that each of them has a tattoo of a skull and crossbones.
              There apparently were no objections to these questions, so the issue has
been forfeited. (Evid. Code, § 353; People v. Dykes (2009) 46 Cal.4th 731, 756.)
However, while evidence of defendant’s tattoos was irrelevant for purposes of
impeaching his character for honesty and nonviolence, that does not mean the prosecutor
committed misconduct by asking the unobjected to questions, or that the questioning
prejudiced defendant. We note that unlike a typical gang case where an expert testifies to
the meaning of a defendant’s gang tattoos (see People v. Lindberg (2008) 45 Cal.4th 1,
46-47 [number of state and federal cases have upheld gang expert’s testimony as to
meaning of gang “tattoos, symbols, and graffiti”]), there was no testimony as to the
meaning of defendant’s tattoos. Tattoos have different meanings to different people. We
are not prepared to say that tattoos of a skull and crossbones, a knife with a drop of blood
on the tip, or an empty bottle of alcohol (in addition to a number of rose tattoos and a
tattoo of his mother’s name) are more likely to be found on one who is violent, dishonest,
or “a heavy partier” than one who has no such tattoos. Tattoos of skull and crossbones
are very common and popular. (For an example of hundreds of different skull and
crossbones tattoos, including female skulls with ribbons, see
<http://www.bing.com/images/search?q=skull+and+crossbones+tattoos&id> [as of June
12, 2015].) Still, not every question by a prosecutor calling for irrelevant evidence
amounts to misconduct. (See People v. Mayfield (1997) 14 Cal.4th 668, 755 [prosecutor




                                             9
asked four irrelevant questions and court found “defendant has not demonstrated
prosecutorial misconduct in asking . . . irrelevant questions”].)
              Even were we to assume the prosecutor’s questions amounted to
misconduct, defendant has failed to demonstrate prejudice. (People v. Stewart (2004) 33
Cal.4th 425, 462.) When asked what the tattoo of the bottle meant, defendant explained
the design was from an album of a band he liked. Another witness was asked about
whether defendant’s tattoo of an empty bottle “looks like a tattoo of somebody who
parties a lot?” The witness responded that it “looks like a tattoo of an alcohol bottle.” At
one point, when the prosecutor asked whether a particular tattoo indicates a person “is a
heavy partier,” the same witness responded, “Is that a serious question? That does not
make a person a partier.” The answers of defendant’s character witnesses defused the
direction of the prosecutor’s questions, even if the questions were asked for an improper
purpose. Moreover, defendant admitted he likes “to go out and drink.” As we stated
above, a large number of people have tattoos, and for a wide variety of reasons.
              What is more, it does not appear that disclosing defendant’s tattoos was
prejudicial. It was not as if he had a swastika or some other symbol of hate on his body.
As defendant himself testified, most of his tattoos are of roses.
                            a. Ineffective Assistance of Counsel
              Recognizing defense counsel did not object to the prosecutor’s questions
regarding defendant’s tattoos, defendant claims that if we find the misconduct issue
forfeited due to a failure to object, then counsel was ineffective. To prevail on a claim of
ineffective assistance of counsel, a defendant must demonstrate not only that defense
counsel’s performance fell below an objective standard of reasonableness under
prevailing profession norms, but must also demonstrate counsel’s shortcoming caused
him prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694.) This requires the
defendant to demonstrate a reasonable probability the outcome of the case would have



                                             10
been different but for counsel’s shortcomings. (Id. at p. 664.) Additionally, “‘“[if] the
record on appeal sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation,” the claim on appeal must be
rejected.’ [Citations.] A claim of ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266-267.) Moreover, if counsel’s failure to object can be
attributed to a sound tactical strategy, the court will presume the failure to object was the
result of the sound tactical decision. (Strickland v. Washington, supra, 466 U.S. at p.
689.)
              Defendant’s ineffective assistance of counsel challenge must fail given we
have concluded that even were we to assume questions concerning defendant’s tattoos
were misconduct, any such error would have been harmless. When it is evident an
ineffective assistance of counsel claim fails due to a lack of prejudice, the court need not
address the issue of counsel’s competence and should resolve the issue on the lack of
prejudice alone. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
              2. Argument by the Prosecutor
              While conceding the jury was properly instructed that a claim of self-
defense cannot be contrived (see CALJIC No. 5.55), defendant claims the prosecutor
committed misconduct by arguing defendant was not entitled to self-defense because
defendant “started it” by flicking his cigarette. Defendant’s citation to the record does
not support the conclusion defendant initiated a fight by flicking a cigarette. Defendant’s
tossing his cigarette eventually led to a fight, but it was not the beginning of a fight.
According to prosecution witnesses, the actions of defendant thereafter started the fight.
He approached Hanlin, but when Sickles stepped in front of Hanlin, defendant struck
Sickles. A defense witness said one person from Sickles’s group approached defendant



                                              11
after defendant flicked his cigarette, the two started fighting, and then the rest of Sickles’s
group approached defendant and entered the fray. Still, Hudson did not say who started
the fight.
              In responding to defense counsel’s argument that defendant acted in self-
defense, the prosecutor told the jury defendant was not entitled to self-defense.
Specifically, the prosecutor argued one cannot pick a fight with five people and pull out a
knife because he feels he might get beaten up. He also argued self-defense cannot be
contrived, and that it was in this case: “[Defendant] picks a fight with [Hanlin], and he
winds up fighting with [Sickles], and now he’s coming in saying it was multiple guys, so
I get to kill some of them. Imagine if that was the law.”
              In his opening argument, the prosecutor told the jury: “Don’t pick fights.
And if you do, you got to stop fighting before you can claim self-defense. And I submit
to you, with this instruction alone, . . . the defense fails. After he has done all three
things, he has a right to self-defense if his opponent continues to fight, or if the victim of
a simple assault responds in a sudden and deadly counterassault, the original aggressor
need not attempt to withdraw and may use reasonably necessary force in self-defense.” It
is evident the prosecutor was referring to CALJIC No. 5.54. That instruction states a
defendant who was the initial aggressor may claim self-defense in one of two situations.
In the first situation, the defendant must (1) try in good faith to refuse to continue to fight,
(2) make his opponent aware, as a reasonable person, that he (defendant) wants to stop
fighting, and (3) by either words or conduct caused the opponent to be aware as a
reasonable person that he (defendant) has stopped fighting. In the alternative, an initial
aggressor is entitled to self-defense without the requirement of the necessity of
attempting to withdraw if “[t]he victim of a simple assault respond[ed] in a sudden and
deadly counterassault . . . .” (CALJIC No. 5.54.)




                                              12
              Defendant forfeited this issue by failing to object to the prosecutor’s
argument and by not requesting the court to admonish the jury. (People v. Adams, supra,
60 Cal.4th at pp. 568-569.) Even were the issue not forfeited, it must nonetheless fail.
Although one who initiates a fight without deadly force and is confronted by a lopsided
response when additional individuals join in on the other side of the fray may be entitled
to self-defense notwithstanding the fact he was the initial aggressor (see People v. Quach
(2004) 116 Cal.App.4th 294, 301-302 [an aggressor is entitled to self-defense without
withdrawing and communicating his withdrawal if “the counter assault be so sudden and
perilous that no opportunity be given to decline or to make known to his adversary his
willingness to decline the strife, [and] he cannot retreat with safety”]), the prosecutor was
not incorrect when he said an initial aggressor who “is all of a sudden faced with a deadly
weapon,” is entitled to use deadly force. The prosecutor’s statement could have been
more inclusive by recognizing an unexpected sudden counterassault by a number of men
could constitute a “sudden and perilous” counterassault that would entitle the initial
aggressor to self-defense, but the above argument did not misstate the law. Moreover,
even if we found the prosecutor misstated the law, any error would have been harmless,
for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to
persuade.” (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.)
                            a. Ineffective Assistance of Counsel
              After briefs were filed in this matter, this court issued its opinion in People
v. Ramirez (2015) 233 Cal.App.4th 940. Defendant thereafter requested to file a
supplemental brief. We accepted the brief in which defendant claimed for the first time
that counsel was ineffective for failing to object to the prosecutor’s argument. Because
the issue was not raised in the opening brief, it has been forfeited. (People v. Duff (2014)
58 Cal.4th 527, 550, fn. 9.) Defendant argued in his opening brief the prosecutor



                                             13
misstated the law. At the same time, defendant knew there had been no objection to the
argument. Given those facts, the fact that our decision in Ramirez issued after the filing
of defendant’s reply brief does not excuse defendant from raising the issue of ineffective
assistance of counsel in his opening brief.
              Even if the claim had not been forfeited, our decision in Ramirez would not
benefit defendant. In Ramirez, the defendants sought to provoke a fistfight with rival
gang members. The incident resulted in the shooting of one of the rival gang members,
purportedly when one of the rival gang members produced a gun. (People v. Ramirez,
supra, 233 Cal.App.4th at pp. 944-945.) The trial court instructed the jury that “‘[a]
person does not have the right to self-defense if he provokes a fight or quarrel with the
intent to create an excuse to use force.’ [Citation.]” (Id. at p. 943.) We recognized the
instruction is accurate in certain cases, but not all. (Id. at p. 947.) “A person who
contrives to start a fistfight or provoke a nondeadly quarrel does not thereby ‘forfeit[] . . .
his right to live.’ [Citation.] Instead, he may defend himself ‘even when the defendant
set in motion the chain of events that led the victim to attack the defendant.’ [Citation.]”
(Id. at p. 943.) In other words, the fact that an initial aggressor intends to provoke a
fistfight does not mean the other person is entitled to use deadly force or a deadly weapon
in response to the provocation.
              The present case does not suffer from the error we found in Ramirez. Here,
the jury was properly instructed pursuant to CALJIC 5.54. As we noted above, even if
the prosecutor misstated the law at some point in his argument, we presume the jury
followed the court’s proper instruction. (People v. Clair, supra, 2 Cal.4th at p. 663, fn.
8.)
              3. Other Instances of Alleged Misconduct
              Defendant next argues the misconduct on the part of the prosecutor was
pervasive and violated defendant’s right to due process. In addition to the prosecutor



                                              14
questioning character witnesses about defendant’s tattoos, defendant claims the
prosecutor argued with character witnesses that defendant’s having being charged in the
present case should have changed their opinions about defendant’s character, employed a
theme characterizing defendant as a “jerk,”1 attempted to invoke sympathy for the victim,
Sickles, and asked argumentative questions.
               The failure to object to the alleged misconduct forfeited that issue. (People
v. Shazier (2014) 60 Cal.4th 109, 129.) But even if we overlook the failure to object,
defendant’s opening brief failed to cite any authority for the propositions that any of the
following constituted misconduct: (1) the prosecutor’s questioning defense character
witnesses about whether defendant’s arrest for stabbing Sickles had an effect on his
reputation; (2) the “jerk” line of argument; (3) the alleged reference to sympathy for
Sickles; and (4) asking argumentative questions. Thus, the issue was forfeited a second
time. (People v. Collins (2010) 49 Cal.4th 175, 199 [defendant who fails to object to
misconduct on ground asserted on appeal forfeits issue]; Cal. Rules of Court, rule
8.204(a)(1)(B).)
                              a. Ineffective Assistance of Counsel
               Recognizing there were no objections in most of these instances, defendant
also again claims counsel was ineffective. Just as we did not address defendant’s


               1   During his argument, the prosecutor asserted this was a bar fight and
there is always a jerk in every bar fight. He asked the jury what, if anything, Sickles did
wrong. He went on to argue: “And [defendant] flicks a cigarette and starts this entire
process . . . . He makes a series of decisions, and what does [Sickles] see? He sees some
jackass going after his brother who has done absolutely nothing. . . . And he punches
defendant, as the defendant deserved, and they lock up and they are moving away from
the doors, . . . and you heard evidence that [Sickles], after he was shoved in the face said
something like, ‘what the f’ . . . so he walks out and all of a sudden he’s in a
confrontation with a guy he doesn’t know, who he had no problems with, who shoves
him in the face and next thing he knows he’s got a knife plunging into his body.” The
prosecutor went on to argue, “[I]f [Sickles is] not the jerk, . . . then the jerk is sitting right
there and the law says that means he’s guilty of murder.”


                                               15
arguments concerning the alleged pervasive prosecutorial misconduct because he did not
cite any authority for his contentions that certain actions constituted misconduct, we do
not address his claim of ineffective assistance of counsel for the same reason. The claim
of ineffective assistance of counsel requires defendant to demonstrate counsel’s conduct
fell below an objective standard of professional reasonableness and that he was prejudice
by the failure. (In re Alvernaz (1992) 2 Cal.4th 924, 936-937.) But as defendant has not
cited authority for the proposition the prosecutor committed misconduct on a number of
occasions, he not only has forfeited the issue of pervasive prosecutorial misconduct, he
has failed to demonstrate counsel’s failure to object was unreasonable.


B. Jury Instruction
              Defendant argues the court prejudicially erred by failing to instruct the jury
that assault is a lesser included offense of attempted murder with a knife. We disagree.
              Whenever there is substantial evidence the defendant is guilty only of a
lesser included offense, the court must instruct on the lesser offense even if the defendant
fails to request the instruction. (People v. Halvorsen (2007) 42 Cal.4th 379, 414.) The
corollary to the rule is: there is no sua sponte duty to instruct on a lesser included offense
if “there is no evidence that the offense was less than that charged. [Citations.]” (People
v. Ghent (1987) 43 Cal.3d 739, 757.) We view the evidence most favorably to the
defendant in deciding whether the court was required to instruct on a lesser included
offense. (People v. Stewart (2000) 77 Cal.App.4th 785, 796.)
              In determining whether a crime is a necessarily included lesser offense,
“courts apply the so-called ‘“accusatory pleading”’ test, which ‘looks to whether “‘“the
charging allegations of the accusatory pleading include language describing the [charged]
offense in such a way that if committed as specified [the proposed] lesser offense is
necessarily committed.”’”’ [Citations.]” (People v. Alarcon (2012) 210 Cal.App.4th



                                             16
432, 436, fn. omitted.) The indictment charged defendant with attempted murder, and
further alleged defendant not only used a knife in the course of committing the offense,
he personally inflicted great bodily injury during the offense. Assuming for purposes of
argument that assault is a lesser included offense of attempted murder as alleged in the
information, defendant’s argument must fail because substantial evidence did not support
the instruction in this case.
               According to defendant, the instruction should have been given because his
friend Hudson testified that after defendant flicked his cigarette, someone approached
defendant and there was a shoving match between defendant and that individual before
“four or five of the other man’s friends . . . started throwing punches and fighting.”
Defendant claims this evidence required the court to instruct on simple assault: “What
Hudson described, generally, was a fight between [defendant] and five other people, in
which [defendant] was unarmed and did not use or possess a knife.”
               There are three flaws with defendant’s argument. First, the evidence was
overwhelming that defendant had a knife that night and stabbed Sickles and McTeigue.
Defendant admitted the knife was the same type and brand he owned. He said he uses the
knife when he goes fishing, and he had intended on fishing earlier that day. Additionally,
when he got out of jail prior to trial, he went through his personal effects to look for his
knife and did not find it. Moreover, there was no evidence this brawl involved anyone
other than the victims, their friends, and defendant. Thus, there is no reason to believe
anyone other than defendant did the stabbing. Sickles’s friends did not stab Sickles in his
chest.
               Second, Hudson did not say the brawl was initiated by defendant.
According to Hudson, the fight started when one of the victims, or whoever the person




                                              17
was who purportedly approached defendant under Hudson’s trial version of the incident.2
Hudson did not say defendant committed an assault. Lastly, assuming defendant did not
have the intent to kill when the melee began, the attempted murder with the knife
involved a different act than those acts involved in the earlier shoving match, which
either occurred as Hudson said or when defendant charged Hanlin, as Sickles’s friends
testified. When the charged crime and the lesser offense involve different acts, the lesser
offense is not a lesser included offense. (People v. Sanchez (1989) 208 Cal.App.3d 721,
748.)
              Because we have addressed the issue without requiring counsel to have
requested the instruction (§ 1259 [court may consider question of law without requiring
an objection or request by defendant in the trial court, if the question involves the
substantial rights of the defendant]), there is no need to address defendant’s ineffective
assistance of counsel claim based on counsel’s failure to request the assault instruction.


C. Unauthorized Sentence
              As noted above, the court sentenced defendant to 15 years to life on the
murder conviction and added a one-year consecutive term for his use of a deadly weapon
(a knife) in the commission of the murder. The court then proceeded to sentence
defendant on the attempted murder and the knife use enhancement attached to that
offense. In selecting the term on the attempted murder, the court ordered defendant to
serve one-third the middle term of seven years (two years and four months) plus a
consecutive term of four months (one-third the term prescribed by section 12022, (b)(1))
for the use of a knife. The sentence imposed on the attempted murder and the attached
weapon use enhancement was unlawful. (People v. Neely (2009) 176 Cal.App.4th 787,

              2  When Hudson testified earlier at the grand jury hearing when his memory
of the incident was better, his testimony conflicted with his trial version. At the grand
jury, Hudson said defendant was the one who approached Sickles’s half brother.


                                             18
799.) Accordingly, the matter must be remanded to the trial court for resentencing on the
attempted murder and the section 12022, subdivision (b)(1) enhancement found true in
connection with the attempted murder.
              The penalty for second degree murder is 15 years to life in prison. (§ 190,
subd. (a).) The penalty for attempted murder without deliberation and premeditation is a
determinate term of five, seven, or nine years. (§ 664, subd. (a).) When a court
sentences a defendant to an indeterminate term for murder, the court sentences the
defendant pursuant to section 190. On the other hand, when the court sentences a
defendant for a crime carrying a determinate term of punishment, the court sentences
under sections 1170 and 1170.1. (People v. Neely, supra, 176 Cal.App.4th at p. 797.)
“Sentencing under these two sentencing schemes must be performed separately and
independently of each other. [Citation.] Only after each is determined are they added
together to form the aggregate term of imprisonment.” (Ibid.) The Neely court
conceptualized sentencing on crimes subject to indeterminate terms and crimes subject to
determinate terms as involving two separate boxes. In the first box, the court calculates
the sentence on the crimes subject to indeterminate sentences. In the second box, the
court sentences defendant on the crimes carrying determinate punishments. (Id. at p.
798.) The term of the sentence on crimes carrying a determinate term is calculated
without regard to the sentence imposed under section 190. (Ibid.) Only after the court
has calculated the separate indeterminate and determinate terms does the court decide
whether the determinate term will be served concurrently or consecutively to the
indeterminate sentence. (Id. at p. 799.)
              Thus, the court’s imposition of one-third of the middle term for attempted
murder and one-third the term for using a knife was error. The court’s obligation was to
impose either the low, middle, or upper term on the conviction for attempted murder. (§
1170.1, subd. (a).) Then, the court was required to either impose a consecutive one-year



                                            19
term for the section 12022, subdivision (b)(1) enhancement attached to that offense (§
1170.1, subd. (d)), dismiss the enhancement, or strike the one-year term pursuant to
section 1385.3 (See People v. Haykel (2002) 96 Cal.App.4th 146, 151.) Only after
calculating the determinate term in this matter does the court then order the determinate
term to be served concurrently or consecutively to the indeterminate term. On remand,
the court shall recalculate the determinate sentence and determine whether the sentence
will run consecutively or concurrently with the indeterminate term the court imposed on
count one.
                                             III
                                      DISPOSITION
               The sentence on count two is reversed. The matter is remanded for the
court to resentence defendant on count two. After the court has resentenced defendant,
the clerk of the superior court is directed to mail a certified copy of the amended abstract
to the Department of Corrections and Rehabilitation. In all other respects, the judgment
is affirmed.


                                                   MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.


               “If the court has the authority pursuant to subdivision (a) to strike or
               3
dismiss an enhancement, the court may instead strike the additional punishment for that
enhancement in the furtherance of justice in compliance with subdivision (a).” (§ 1385,
subd. (c)(1).)


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