People v. Xum CA2/2

Filed 7/27/16 P. v. Xum CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B265306

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA431377) v.

MIGUEL XUM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Henry J. Hall, Judge. Affirmed.

George W. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant and appellant Miguel Xum (defendant) of attempted murder in violation of Penal Code section 187, subdivision (a) and section 664.1 The jury also found true the allegations that defendant personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b) and that he personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). The trial court sentenced defendant to a total of nine years in state prison. Defendant contends his conviction must be reversed because the trial court failed to give the jury a self-defense instruction. Defendant further contends the court abused its discretion under Evidence Code section 352 by admitting the weapons into evidence. Since substantial evidence did not support instructing the jury on self-defense and the admission of weapons into evidence was not an abuse of discretion, we affirm the judgment. BACKGROUND On November 6, 2014, defendant lived in an apartment with the victim, Francisco Sac (Sac) and with Sac’s brothers Manuel and Antonio.2 That night, defendant and Sac went to McArthur Park, approximately three blocks from their apartment, and drank beer. They eventually headed home. As the two men approached their apartment, defendant suddenly ran off. He later emerged between some parked cars with his hands behind his back. Defendant had an angry expression on his face but Sac did not think defendant was angry at him. The two men had a good relationship and they had not argued or fought. Defendant said “I’m going to kill you” and revealed that he had a knife and a pitchfork in his hands. Sac recognized both the knife and pitchfork as kitchen implements he and his brothers used in their apartment when cooking. The knife was approximately 12 and a half inches long