People v. Gueyger CA3

Filed 8/19/14 P. v. Gueyger CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C072520

Plaintiff and Respondent, (Super. Ct. No. 12F00852)

v.

CARLOS GUEYGER,

Defendant and Appellant.

After defendant Carlos Gueyger stabbed David Ellis in the neck with a knife, a jury convicted him of assault with a deadly weapon with a finding of great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7 subd. (a)–count one) and battery with serious bodily injury (Pen. Code, § 243, subd. (d)–count two). Defendant was sentenced to state prison for seven years on count one and three years on count two, the latter term stayed pursuant to Penal Code section 654. On appeal, defendant contends the court prejudicially erred when it (1) ordered him restrained during trial, and (2) failed to instruct the jury, sua sponte, to disregard the

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fact he was in restraints. We conclude the contentions lack merit and therefore shall affirm the judgment. FACTS David Ellis and defendant, both of whom were homeless, hung around together and drank daily. On January 13, 2012, the two had been drinking and were at a Del Taco restaurant. Defendant showed Ellis a hunting knife he carried, and, in turn, Ellis showed defendant a dagger he carried. Defendant bought Ellis’s dagger for $5. Defendant set his hunting knife on the table and walked away. Ellis took the hunting knife and put it in his sock. When defendant returned he asked Ellis if he had the hunting knife and Ellis replied that he did not. With Ellis’s consent, defendant searched him and found the knife. Defendant unsheathed the knife and lunged at Ellis, calling him a thief, and stabbed him in the neck. Ellis went inside the Del Taco and called 911, and defendant left the scene. Not wanting to be labeled a “snitch,” Ellis told the 911 operator he did not know who had stabbed him, but he gave the fire department personnel and police who arrived a description that matched defendant. The stabbing cut Ellis’s external jugular vein, requiring surgery and three days in the hospital. Mary Trejo and Scott Rasmussen, both of whom were homeless and had several prior convictions, saw and heard Ellis and defendant arguing over the disappearance of defendant’s hunting knife. Trejo saw defendant search Ellis, remove the knife from the area of Ellis’s ankle, cut Ellis on the throat, and then leave the scene. Trejo never saw Ellis make an aggressive move toward defendant. Rasmussen also saw defendant remove the knife from Ellis’s shoe or boot, but he claimed he did not see defendant stab Ellis because he had turned to drink his beer.