People v. Aguillon CA3

Filed 6/15/15 P. v. Aguillon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C075360

v. (Super. Ct. No. 13F00749)

MARIO AGUILLON,

Defendant and Appellant.

Convicted by a jury of assault by a prisoner serving a life sentence and possession of a sharp instrument in prison, defendant Mario Aguillon contends the trial court violated his Fifth Amendment right to remain silent and erred prejudicially by failing to instruct the jury with CALCRIM No. 355. Defendant also contends his trial counsel provided ineffective assistance by failing to request the instruction at trial. We conclude there was no error because defendant did not request the instruction be given to the jury at the close of the case. Even assuming error, there was no prejudice and consequently no failure of counsel because the prospective jurors were instructed during

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voir dire and the evidence against defendant was strong. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND An amended complaint deemed an information charged defendant with assault by a prisoner serving a life sentence, with malice aforethought and by means of force likely to produce great bodily injury (count 1; Pen. Code, § 4500),1 and possession of a sharp instrument by an inmate (count 2; § 4502, subd. (a)). As to count 1, the information alleged defendant personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The information also alleged a prior serious felony and a prior strike conviction for first degree murder. (§§ 667, subds. (b)-(i), 1170.12.) The jury convicted defendant on both counts, but found the great bodily injury enhancement not true. After defendant waived his right to jury trial on the prior, the trial court found it true. The evidence at trial showed defendant, an inmate of California State Prison, Sacramento, and another inmate jointly assaulted the victim on the B Facility main yard. While the other assailant punched the victim with closed fists, defendant stabbed the victim multiple times in the back, arm, and upper torso. Defendant continued his assault even after a correctional officer sprayed him in the face with pepper spray and threw an oleoresin capsicum grenade also containing pepper spray. After a second correctional officer threw another pepper spray grenade, defendant stabbed the victim three more times before stepping away and throwing the weapon away from him. A surveillance video of the assault was played for the jury.