People v. Banks CA4/1

Filed 6/26/24 P. v. Banks CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081736

Plaintiff and Respondent,

v. (Super. Ct. No. SCE411886)

KEVIN TYRONE BANKS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Steven E. Stone, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Jon S. Tangonan, Deputy Attorneys General, for Plaintiff and Respondent. I. INTRODUCTION Kevin Tyrone Banks appeals his assault with a deadly weapon conviction, contending insufficient evidence supported the charge and that

the court incorrectly instructed the jury on self-defense during mutual combat. Finding substantial evidence of deadly weapon use and no error in the instructions, we affirm the conviction. II. FACTUAL AND PROCEDURAL BACKGROUND On October 22, 2021, Banks and Halbert Braley got into a fight, during which Braley sustained various serious lacerations to his left arm and leg. Responding officers applied tourniquets to those limbs and identified his injuries as consistent with knife wounds. In surveillance footage capturing the incident, Braley is heard three times saying, “[w]hy’d you stab me, Kev?” Braley’s girlfriend, Cynthia Ellis, is also heard in the footage multiple times asking, “[w]hy did you stab him?” When she called 911, Ms. Ellis reported the event as a stabbing. An ambulance transported Braley to the hospital, where staff described his injuries as “stab wounds” caused by a “machete-type knife.” Braley’s left arm suffered a brachial artery laceration, transections of his radial and ulnar nerves and biceps and triceps muscles, as well as damage to the flexor tendons in his forearm. These injuries required surgical repair. Braley’s left leg required an operation to repair severe damage to his Achilles tendon, posterior tibial tendon, plantaris tendon, tibial nerve, and posterior tibial artery. Braley remained in the hospital for seven days before recovering sufficiently for discharge. On June 28, 2022, the case went to trial. At its conclusion, Banks’s attorney asked the court to give the self-defense and mutual combat instructions. Over the People’s objection the court agreed to read the self-defense instruction; defense withdrew its mutual combat instruction request. During deliberations the jury sent a note to the court asking, “If both people instigate a fight, do either have a right to claim self-defense?”