P. v. Lemusu CA2/8

Filed 6/26/13 P. v. Lemusu CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B241619

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA 090108) v.

TASI LEMUSU,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Marc Kohm and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found appellant Tasi Lemusu not guilty of first degree murder, but guilty of second degree murder. (Pen. Code,1 §§ 187, subd. (a), 189.) The jury also found that appellant used a deadly and sharp weapon within the meaning of section 12022, subdivision (b)(1). On appeal, appellant challenges his conviction arguing that the court prejudicially erred in instructing the jury. We find no error and affirm. FACTS AND PROCEDURE 1. Prosecution Evidence Danny Logan was killed outside a homeless camp under a bridge in Long Beach. “Rah Rah” and his girlfriend “Crazy” lived in the camp and, about 11:00 p.m. on September 12, 2011, started to argue.2 Rah Rah threw a rock at Crazy’s tent and threatened to attack her. Logan, a fellow resident of the camp, exited his tent and told the couple to keep their voices down. Rah Rah told Logan to mind his own business and the two argued and shoved each other. Logan knocked Rah Rah to the ground several times, and Logan dragged Rah Rah on the ground a few feet. Rah Rah then hit Logan on the top of the shoulder with a large metal flashlight. At that point, appellant jumped off of the wall where he had been sitting, approached Logan and Rah Rah, and stabbed Logan with a sharp object. Logan fled with appellant and Rah Rah in pursuit. Logan eventually collapsed on the shoulder of a nearby freeway. Two police officers who found Logan reported that he said he had been stabbed under the nearby bridge but did not know who had stabbed him. Logan died the next day from a punctured lung. The medical examiner who performed the autopsy on Logan determined that he had methamphetamine and marijuana in his system, but that the methamphetamine level was “pretty low.”