People v. Havili CA3

Filed 7/19/16 P. v. Havili CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C079350

Plaintiff and Respondent, (Super. Ct. No. 14F00236)

v.

SIONE HAVILI,

Defendant and Appellant.

A jury found defendant Sione Havili guilty of second degree robbery. The trial court sentenced defendant to three years in prison. On appeal, defendant contends trial counsel rendered ineffective assistance of counsel by failing to request a modification of CALCRIM No. 372, the flight instruction, and by failing to request a limiting instruction regarding a prior conviction. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND On January 14, 2015, Manbinder Minhas and Dennis Shurrum were working at Dawes Wine & Spirits in Rancho Cordova. About 6:45 p.m., defendant and two of his

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friends, Roman and J. J., went to Dawes Wine & Spirits to steal beer. J. J. entered the store while Roman and defendant waited outside. J. J. grabbed two 18 packs of beer and ran toward the door. However, before he reached the doorway, J. J. tripped and fell, causing one of the 18 packs to split open and beer cans to spill onto the ground outside the store. When Minhas and Shurrum approached J. J., defendant lifted up his T-shirt, exposing the handle of a revolver in his waistband and said, “What’s up?” Minhas told defendant, “it’s not worth it.” In response, defendant said if “[y]ou come outside the store, I’ll kill you.” Because Minhas did not want to risk his life, he made no attempt to recover the beer. After Roman and J. J. picked up the beer, defendant and his friends walked away. At trial, defendant testified on his own behalf. He admitted he knew J. J. went inside Dawes Wine & Spirits to steal beer. He explained that he and his friends planned the “beer run” ahead of time. Defendant also admitted he had previously been convicted of a felony in 2012. However, he denied he had a gun or threatened anyone. The jury found defendant guilty of second degree robbery, but found the allegation that he personally used a firearm untrue. The trial court also struck an enhancement allegation after the prosecutor admitted the People could not meet their burden of proof to show defendant committed the robbery while released from custody on bail or on his own recognizance. The trial court sentenced defendant to three years in prison. Defendant filed a timely notice of appeal. DISCUSSION Defendant contends trial counsel rendered ineffective assistance of counsel by failing to request CALCRIM No. 372, the flight instruction, be modified to specify that “the crime” referred to in the instruction was the crime charged in the instant case and not any other crime about which the jury heard testimony. Defendant further contends trial