People v. Diaz CA5

Filed 5/3/22 P. v. Diaz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F080321 Plaintiff and Respondent, (Super. Ct. No. 18CMS-3481) v.

ANTHONY MARTINEZ DIAZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Randy L. Edwards, Judge. Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Meehan, J. and DeSantos, J.

In this appeal defendant, Anthony Martinez Diaz, challenges the constitutional fairness of his trial because a standard instruction on how to view conflicting evidence was not provided. Defendant also challenges the validity of an enhancement charged and found true by the jury for use of a deadly weapon. Defendant believes the enhancement must be stricken because the use of a deadly weapon is an element of the crime he was found guilty of committing, assault with a deadly weapon. While we conclude defendant was not prejudiced by the lack of one jury instruction after reviewing the complete record of how the jury was instructed in this case, we agree the enhancement for the use of a deadly weapon must be stricken. FACTUAL AND PROCEDURAL SUMMARY In June 2018, defendant lived in a house with his mother, a younger sister, B.F., and a younger brother. Also living in the house at that time was F.C., his mother’s on-again, off-again boyfriend. On the morning of June 20, 2018, defendant’s mother (mother) and F.C. went to the Laton River with defendant’s brother and F.C.’s daughter. While at the river, F.C. was drinking beer. Mother thought F.C. was drunk when he stated defendant’s “girlfriend better not be there when we get [home].” In fact, defendant and F.C. argued about this issue twice before. F.C. did not like seeing defendant’s girlfriend at the house, because he felt defendant should have his own place as he was now over the age of 18. Mother testified they returned home at approximately 5:00 p.m. Upon their arrival, she realized defendant was already there with his girlfriend. Mother went through the house, to the backyard, to tell defendant and his girlfriend to leave. His mother explained she was “buzzed” from drinking beer at the river and upset, hoping to avoid an argument between F.C. and defendant. After his mother told defendant to “get out now,” defendant and his girlfriend left. Initially, mother followed defendant to his father’s house, approximately half a mile away, to talk to his father about what had happened. When she returned home,