1 Filed 5/22/14 P. v. Corona CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado)

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THE PEOPLE, Plaintiff and Respondent,

v. SERGIO CORONA, Defendant and Appellant. C073243 (Super. Ct. No. P12CRF0204)

After a domestic dispute with his girlfri end, defendant Sergio Corona entered the home of neighbors he di d not know, threatened them and dr ove off in their car. About 20 or 30 minutes later, police chased the flee ing car and arrested defendant. A jury convicted defendant of first degree residentia l robbery, first degree residential burglary, criminal threats, unlawful driv ing or taking of a vehicle, and driving with willful or wanton disregard for the safety of persons or property while evading an officer. The trial court sentenced defendant to an aggregate prison term of seven years eight months.2 Although the trial court orally awarded 372 da ys of presentence credit (324 actual days and 48 conduct days), the abstract of judgment indicates an award of 48 actual days and 324 conduct days. Defendant now contends (1) he received ineffective assi stance of counsel because his lawyer did not request instructions on mi stake of fact or voluntary intoxication, and (2) the abstract of judgment should be modified to accurately reflect the trial court’s oral award of presentence credit. We conclude defendant’s ineffective a ssistance claim lacks merit, but we will order correction of the abstract of judgment . Accordingly, we will affirm the judgment. BACKGROUND At the time of the crimes, defendant lived in Pollock Pines with his girlfriend and her five children. Their baby was due any day. The girlfriend said defendant became increasingly upset that evening starting arou nd 6:00 p.m., first ye lling at one of the children and later cursing at her and throwing things. Defendant to ld her several times that he wanted to go back to Fresno, but they had no car. The girlfriend suggested he take a walk and return when he was calm. She did not see defendant drinking that day, but she thought he probably dr ank more than a bottle of wi ne and other liq uor during the afternoon and evening. Dorothy and Rene Van Asten lived on the same street as defendant, but they had never met him. At around 7:30 p.m., the Van Astens were watching television when defendant walked into their ho use and said, “I want your ca r keys, and I don’t want to hurt you, but I have two guns in my back pocket, a .38 and a .45, and I’m ready to use them if I have to.” Defendant said he ha d just come from “up the street” where he had punched out a window and hurt his girlfriend. His knuckles were bloody and he acknowledged throwing something at his girlfri end, but he declined Rene’s offer to accompany him back to his own h ouse to check on her. Instead, defendant insisted that he wanted their car to drive to Fresno, where his family lived.3 Rene tried to get the situation unde r control by engaging defendant in conversation. When Dorothy attempted to leave the room, defendant warned her not to “do anything foolish with the phone.” Ev entually, Rene concluded defendant had no guns, but defendant repeatedly made threats su ch as “I have friends and, you know, they could burn your house down.” After five to ten minutes, defendant grab bed some keys that were on the kitchen counter, took them to a car parked outside and tried to start it. Rene went with him. Defendant appeared normal when he got into the car, but when the key did not work he returned to the house and b ecame very agitated, saying he was “sick and tired” and wanted to “get out of here.” While Rene and defendant were outside, Dorothy went into th e bathroom with a telephone, locked the door and called 911. She was able to provide defendant’s name and address to the dispatcher because he ha d identified himself when he came into the house. She abruptly hung up when she heard defendant trying to use a different phone in the house. Back in the kitchen, defendant removed his jacket and shirt to reveal a bulldog tattoo on his chest, indicating his gang aff iliation. He threw a telephone, billfold and a four- to six-inch straight razo r onto the counter. At about th at time, the dispatcher called back. Defendant did not react as Rene re moved defendant’s driver’s license from the billfold and read the name, a ddress and driver’s license num ber to the dispatcher. Defendant obtained the correct keys and drove off in the Van Asten’s car. As he was about to drive away, Rene leaned into the car’s window and said, “Sergio, don’t do this.” “[D]on’t get into any more trouble.” Defendant replied, “No, I’ll be okay” and left. The Van Astens were frightened throughou t the 20- to 30-minute ordeal. Neither of them gave defendant permission to take their car. Police returned th e car to them later that evening, but it require d $1,400 in repairs.4 An El Dorado County Sheri ff’s deputy on patrol that ev ening saw a car and driver matching the description provided by the di spatcher. After a two-minute chase, the deputy pulled the car over. De fendant told the de puty he thought he would try to get away but stopped because he did not want to hurt anybody. The deputy understood what defendant said and observed that defendant did not have any trouble responding to questions; he also said defenda nt had no trouble walk ing and did not stum ble or fall. The deputy did not observe anyt hing that led him to believe defendant was under the influence of alcohol or anothe r intoxicating substance. A jury found defendant gu ilty of first degree residential robbery (Pen. Code, § 211), first degree residential burglary (Pen. Code, § 459), criminal threats (Pen. Code, § 422), unlawful driving or taking of a ve hicle (Veh. Code, § 10851, subd. (a)), and driving with willful or wanton disregard for the safety of persons or property while evading an officer (Veh. Code , § 2800.2, subd. (a)). The tr ial court sentenced defendant to an aggregate prison term of seven years ei ght months (six years for robbery, one year for a prior prison term and eight months for evading an officer, with additional sentences imposed but stayed). The trial court also aw arded 372 days of presentence credit (324 actual days and 48 conduct days ), but the abstract of judgment incorrectly indicates an award of 48 actual days and 324 conduct days. DISCUSSION I Defendant contends he r eceived ineffective assistance of counsel because his lawyer did not request instructions on (A) mistak e of fact or (B) voluntary intoxication. Ineffective assistance of counsel is estab lished when it is reasonably probable that the outcome of a trial was affected by th e defense lawyer’s deficient performance. ( Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed .2d 674, 693].) There is “a strong presumption that counsel ’s conduct falls within the wide range of reasonable professional assistance.” ( Id . at p. 689 [80 L.Ed.2d at pp . 694-695].) Accordingly, the5 defendant bears the burden of proving that his attorney failed to act with reasonable competence and also that a more favorable result was probable in the absence of counsel’s failings. ( People v. Price (1991) 1 Cal.4th 324, 440.) Instructions concerning a particular de fense may be offered only if they are supported by substantial evidence. ( People v. Larsen (2012) 205 Cal.App.4th 810, 823.) Courts do not measure substantiality of evid ence by weighing conflicting evidence or evaluating witness credibility. ( Id . at p. 827.) Doubts as to the sufficiency of evidence to warrant instructions are resolved in favor of the accused. ( People v. Eid (2010) 187 Cal.App.4th 859, 879.) But instructi ons need not be give n at all where the supporting evidence for them is minimal or speculative. ( People v. Harris (1970) 7 Cal.App.3d 922, 926.) A competent attorney is not expected to request unnecessary instructions. ( People v. Castillo (1997) 16 Cal.4th 1009, 1018.) A Defendant claims his trial lawyer sh ould have requested CALCRIM No. 3406 (unreasonable mistake of fact) because Rene ’s statements were sufficient to allow defendant to reasonably believe Rene had given him permis sion to take the car. He argues the instruction would have given him a defense to firs t degree robbery, a specific intent crime. CALCRIM No. 3406 provides in pertinent part: “The defendant is not guilty of [robbery] if he did not have the intent or mental state required to commit the crime because he did not know a fact or mistakenly believed a fa ct. [¶] If the defendant’s conduct would have been lawful under the facts as he believed them to be, he did not commit [robbery].” Defendant claims Rene as ked him why he wanted the car, and when defendant said he wanted to go “home” to Fresno wh ere his mother and other family members lived, Rene dialed the phone so that defendant could talk to his mother. Defendant also points out that Rene accompanie d him to the car and urged him not to get into more6 trouble. He claims the eviden ce, viewed in the light most favorable to the defense, shows that defendant, perhaps unreasonably, belie ved the Van Astens a llowed him to borrow their car for a trip to Fresno. We disagr ee with defendant’s characterization of the evidence. Rene testified unequivocally that ne ither he nor Dorothy gave defendant permission to take their car and, in fact, th ey repeatedly told hi m not to take it. Defendant did not explore cons ent on cross-examination and he did not testify. The evidence indicates Rene attempted to defuse the situation by talking with defendant, but defendant continued to threaten and frighten the Van Astens until he left. Defendant’s trial counsel was not deficien t in failing to request a mistake of fact instruction because there is no su bstantial evidence to support such an instru ction. There is also no showing of prejudice, becaus e even if defense counsel had requested CALCRIM No. 3406, the trial court likely woul d not have given it, and even if it had been given, there is no evidence to support a different verdict. B Defendant also contends he received in effective assistance of counsel because his lawyer did not request CALCRIM No. 3426 ( voluntary intoxication). He claims the instruction would have allowed the jury to find that volu ntary intoxication negated the specific intent required for burglary, robbery and criminal threats. Defendant notes that his girlfriend said he had been drinking wine after the family’s Easter egg hunt that afternoon and th at, “[a]s far as [she] could tell,” he was still drinking when their argument began in the earl y evening. He also points to descriptions of defendant’s erratic behavior by the Van Astens, particular ly Dorothy’s statement to the 911 operator: “We’ve got a -- dr unk madman in our house.” Evidence that the defendant consumed alcohol before committing a crime is not enough to justify instruction on voluntary intoxication; there must also be evidence regarding the quantity of alco hol consumed and the effect on the defendant’s state of7 mind. ( People v. Carr (1972) 8 Cal.3d 287, 294.) He re, there were comments about defendant’s drinking and the possible e ffect, but that evidence was minimal and speculative. Although defendant’s girlfriend commented that she had not seen defendant drink “like that” before, she al so admitted that she did not s ee him drink that day and did not know how much he drank. Regarding Dorothy’s statement th at defendant was a “drunk madman,” she could not remember wh ether she said that based on the way defendant was behaving or beca use she smelled alcohol on him. Rene testified that he did not smell alcohol on defendant, but he thought defendant mi ght have used some substance because defendant was irrationa l and alternately agitated and calm. Defendant’s girlfriend attributed his irrita bility and anger to the fact that he “had the stress of the world on his shoulders,” a nd not to intoxication. She described his conduct before he left, but did not mention slurred speech, wate ry eyes or stumbling. The Van Astens said defendant spoke clearly, responded to what they said, and did not stagger or have trouble walking. In add ition, the arresting deput y testified that he observed nothing that led him to believe defe ndant was under the influence of alcohol or any other intoxicant. Defendant argues that turning his cell pho ne, wallet and identification over to the Van Astens showed he was so impaired by alcohol that he could not form the specific intent for criminal conduct. But there is no evidence suggesting why defendant put those items on the counter, and we dec line to speculate that it was due to intoxication sufficient to negate specific intent. Defendant also su ggests that a defense theory of voluntary intoxication was consistent with the defenses asserted, so “[t]here was nothing to lose by requesting the instruction.” Defendant conc edes, however, that the “nothing to lose” argument was rejected in Knowles v. Mirzayance (2009) 556 U.S. 111, 112-113 [173 L.Ed.2d 251, 255-256], and it lacks merit here. Defendant’s trial counsel was not deficien t in failing to request an instruction on voluntary intoxication because substantial eviden ce does not support the instruction. (See8 People v. Williams (1997) 16 Cal.4th 635, 677 [no inst ruction warranted because of scant evidence that being “ ‘doped up’ ” had an y effect on ability to form intent] and People v. Marshall (1996) 13 Cal.4th 799, 848 [evidence of consuming large quantity of alcohol did not warrant instruction with out evidence of alcohol’s a ffect on defendant’s state of mind].) Moreover, defendant has not estab lished the likelihood of a more favorable outcome if the instruc tion had been given. Defendant has not established ineffe ctive assistance of counsel. II Defendant also points to the discrepanc y between the oral award of presentence credit and the recitation of those credits in th e abstract of judgment. He contends the number “324” should have been recorded on th e abstract of judgment in the “actual days” column and the number “48” should have been recorded in the “co nduct” column. The Attorney General agrees. We will order co rrection of the abstract of judgment. (See People v. Rowland (1988) 206 Cal.App.3d 119, 123 [wr itten judgment to be corrected to reflect the sentence pronoun ced on the record].) DISPOSITION The judgment is affirmed. The trial cour t is directed to correct the abstract of judgment to reflect the orally awarded 372 da ys of presentence cred it, consisting of 324 actual days and 48 conduct days , and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

MA URO , Acting P. J.

We concur:

MURRAY , J.

HOCH , J.