Filed 8/27/13 P. v. Brown CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
RAMUNDIE O. BROWN,
Defendant and Appellant. 2d Crim. No. B240983 (Super. Ct. No. BA387264) (Los Angeles County)

Ramundie O. Brown appeals from th e judgment following his conviction by jury of attempted murder and assau lt with a deadly w eapon. (Pen. Code, §§ 664/187, subd. (a); 245, subd. (a)(1).) 1 The jury also found true allegations of personal weapon use and great bodily injury. (§§ 12022, subd. (b )(1); 12022.7, subd. (a).) The trial court found that appellant had one prior serious felony conviction and served a prior prison term (§§ 667, subds. (a)(1) & (b)-(i); 1170.12, subds. (a)-(d); 667.5, subd. (b)), and sentenced him to stat e prison for 19 years. Appellant contends
there is insufficient evidence to support his convictions, and the prosecutor committed prejudicial misconduct. We affirm with inst ructions directing the superior court clerk to correct the abstract of judgment to reflec t that appellant was convicted by jury.

1 All statutory references are to the Pe nal Code unless otherwise stated. The abstract of judgment incorrectly states that appellant was convicted by plea.2 FACTUAL AND PROCEDUR AL BACKGROUND Richard Thompson, the victim, lived w ith his mother in a house behind a mixed martial arts (MMA) gym on Melrose Av enue in Los Angeles. Appellant trained at the same gym, and often worked with trainer Steve Arce (Steve). Thompson, an experienced MMA trainer, testified he was t oo old to "do the fighting," but practiced fighting "every day." He drank beer and vodka daily, and was an alcoholic. MMA trainer Haruntun Khachatryn (Haruntun) te stified that Thompson could perform difficult training exercises extremely well while intoxicated. Appellant, an accomplished MMA fighter, specialized in boxi ng, and competed in matches daily. At various times, Thompson, Haruntun, or other trainers took care of the MMA gym while its owner was unavailable. On July 31, 2011, Thompson told Steve the gym was not a motel, and that he could no t sleep there. The same day, by his own estimate, Thompson drank about seven cans of beer, three bottles of vodka and several
40-ounce bottles of beer. On the evening of July 31, while he was dru nk, Thompson noticed the gym windows were broken. He entered th e gym to check, and found Steve, a naked woman, and another man, later identified as appellant. Thom pson told them to leave. One of them said, "[Y]ou're just an alco holic." The last things Thompson recalled were "[h]itting . . . [appellant], finishing [his] drink, blacking out, . . . [and] waking up in the hospital." Thompson had punched appe llant in the face with a closed fist when appellant was sitting on a bench near th e gym, on Melrose. Appellant's face was bleeding near his eye. Haruntun drove by, and saw appe llant and Thompson on Melrose, outside the gym, facing each other and ar guing loudly. Addressing Haruntun, Thompson said, "I need you ri ght now." Haruntun parked his car behind the gym, and entered through its back door. As he walked through the gym toward Melrose, he saw Steve inside, "cleaning up his sleeping ba g." Haruntun continued outside, where appellant was "in a fighting stance," with his fists in front of him, facing Thompson.3 Standing with his arms outstretched, an d his palms facing up, Thompson said, "If you're going to hit me, hit me. Go ahead. Hit me." Haruntun was behind appellant. Thompson told appellant to turn around. He turned toward Haruntun , then turned back toward Thompson, and resumed his fighting stance. Appellant said, "I'm going to go ge t something," and left. He "went down the stairs, through the sidewalk . . . to [a] driveway that le[d ] to the back parking lot." Appellant returned quickly, and lunged toward Thompson, who was "[j]ust standing there" with his arms at his sides. From Haruntun's perspective, it looked as if appellant had punched Thompson 's left abdomen. Thompson asked, "Is that all you've got? That's your punch?" Appellant resp onded, "I didn't punc h you." Thompson raised his shirt, and saw a stab wound. Haruntun then noticed a 3-inch blade protruding from the sleeve of appellant's "sw eat jacket." Appella nt walked westbound
on Melrose. Haruntun did not see him again that night. Haruntun called 911. Los Angeles Police Detective Greg Staats responded to the 911 call at about 9:20 p.m. He noticed a 2-inch long stab wound in Thompson's left lower chest / upper stomach area, with "int ernal parts coming out." At approximately 10:00 p.m., seek ing help, appellant approached Detective Staats in a parking lot, abou t 2.1 miles from the MMA gym. Staats described appellant as someone with "a lo t of upper body strength" who "definitely
worked out a lot." Thompson required surgery, and stayed in the hospital for a week. His attending surgeon testified that a stab wou nd on the left side of his midsection injured Thomas's stomach, and pierced the artery that supplies blood to the stomach and
mesocolon.
DISCUSSION
Substantial Evidence Appellant contends the evidence is insufficient to sustain his attempted
murder and assault with a deadly weapon convictions. We conclude otherwise.4 "When the sufficiency of the evid ence to support a conviction is challenged on appeal, we review the entire r ecord in the light mo st favorable to the judgment to determine whether it contains ev idence that is reasonable, credible, and of
solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] 'Conf licts and even testim ony which is subject to justifiable suspicion do not justify the reversal of a judgm ent, for it is the exclusive province of the trial judge or jury to determine th e credibility of a witness and the truth or falsity of the facts upon which a dete rmination depends.' [Citation.] Unless it describes facts or events that are physica lly impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction. [Citation.]" ( People v. Elliott (2012) 53 Cal.4th 535, 585.) "A re versal for insuffici ent evidence 'is unwarranted unless it appears "that upon no hypothesis what ever is there sufficient substantial evidence to suppor t"' the jury's verdict." ( People v. Zamudio (2008) 43 Cal.4th 327, 357.) Appellant first argues that suffici ent evidence is lacking because Thompson "was the aggressor," and appellant " acted in self-defense." We disagree. Killing in self-defense is justifie d only if the defendant actually and reasonably believed that it was necessary to prevent imminent harm. (§ 198; People v. Humphrey (1996) 13 Cal.4th 1073 , 1082.) Whether the defendant's belief was reasonable is measured objectively, "'from th e point of view of a reasonable person in the position of defendant . . . .' [Citation.]" ( Humphrey , at p. 1083.) "'"Self-defense may be resorted to in orde r to repel force, but not to inflict vengeance. . . ." [Citation.]'" ( People v. Jones (1963) 215 Cal.App.2d 341, 345.) The jury was properly instructed on self-defense. (CALCRIM Nos. 505, 3470, 3471, 3472, 3474.) It re jected that theory and convic ted appellant. Substantial evidence supports the convictions. Thomps on punched appellant only one time, while he was seated on a bench. Appellant st ood, assumed a fighting stance, and faced Thompson. Thompson urged appellant to hit him. Appellant said he was going "to go5 get something," and left. He returned with a concealed knife, and became the aggressor. He lunged at Thompson, who "[j] ust standing there" with his arms at his sides, and stabbed his abdomen. From that evidence, the jury could reasonably infer that appellant stabbed Th ompson out of revenge, and not in self-defense. We also reject appellant's claim that there is insufficien t evidence of his intent to kill Thompson. The "intent to kill . . . , the mental state required to convict a defendant of attempted murder, may . . . be inferred from the defendant's acts and the
circumstances of the crime. . . . '"Such intent must usually be derived from all the circumstances of the attempt, incl uding the defendant's actions."'" ( People v. Smith (2005) 37 Cal.4th 733, 741.) Appellant stabbed Thompson's abdo men with sufficient
force to inflict internal stom ach injuries, and puncture the artery that feeds the stomach
and mesocolon. Substantial evidence supports the finding that appellant intended to kill Thompson. ( People v. Moore (2002) 96 Cal.Ap p.4th 1105, 1114; People v.
Bolden (2002) 29 Cal.4th 515, 561 ["In plunging the knife so deeply into such a vital area of the body of an apparently unsuspec ting . . . victim, defendant could have had no other intent than to kill"].) In challenging the sufficiency of the evidence, appellant also argues Thompson's testimony was unreliable becaus e his intoxication on July 31, 2011, interfered with his perception of the incident . We disagree. Other evidence supports the judgment, including extensive eyew itness testimony about the stabbing, and medical evidence concerning the stab wound and the extent of Thompson's injuries. Appellant further claims that Thom pson's intoxication while testifying rendered him incapable of offe ring competent evidence. He would, therefore, have this court disregard his testimony in determin ing the sufficiency of the evidence. The trial court summarily and corre ctly ruled on the same point . Thompson testified about
the amount of alcohol he consumed before te stifying, the court observed his condition, and impliedly found him a comp etent witness. (Evid. Code , § 702.) From that point6 forward, it was for the jury to place such weight upon his testimony as it saw fit. ( People v. Gipson (2004) 117 Cal.App.4th 1065, 1071-1072.) Attempted Involuntary Manslaughter Appellant also asks this court to reduce his conviction to attempted manslaughter "because the record supports at least a finding appellant had an actual
but unreasonable belief in the need to defend hims elf against great bodily injury or
death." We decline to do so. In claiming he had "an actual if ar guably unreasonable belief in the need
to defend himself . . . in this attack initiated by Thompson," appellant cites People v.
Booker (2011) 51 Cal.4th 141, 182. Booker simply addressed the need for imperfect self-defense instructions. ( Ibid .) Appellant's jury was prope rly instructed on imperfect self-defense, as well as self-defense, and it rejected both theori es. (CALCRIM Nos. 460, 570, 604.) Although se ction 1260 empowers this c ourt to "reduce the degree of the offense or attempted o ffense" we will not exercise that power here, where substantial evidence supp orts the judgment. ( People v. Torres (1963) 214 Cal.App.2d 734, 740.)
Prosecutorial Misconduct Appellant argues that prosecutorial misconduct compels the reversal of
his convictions. We conclude otherwise. A prosecutor's misconduct violat es the federal Constitution when it comprises a pattern of conduct so egregious that it infects th e trial with such unfairness as to make the conviction a denial of due process. ( People v. Hill (1998) 17 Cal.4th 800, 819.) Conduct of a prosecutor that does not make the trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. ( Ibid. ) Appellant first claims that the pros ecutor engaged in misconduct because "the prosecutor . . . delayed turning over evidence to the defense." Among other things, this claim concerns information that prosecution witness Haruntun provided in7 answering a question. (He testified that th ere had been one incident where appellant was hostile and "there was . . . flailing of a sword . . . .") Defense counsel immediately asked to approach the bench and objected that the prosecut or had not disclosed that information. After the prosecutor explained she had no prior knowledge of the flailing sword incident, the trial court properly c oncluded there was no "discovery violation because the People just fo und out about it, too," and ordered the prosecutor to
interview Harunton to avoid an y further surprises. (§ 1054. 7.) The next day, defense counsel complained that the prosecution had given him two new statements from Haruntun, one new statement from the victim, as well as statements from officers. The
court considered his claims. The record su pports its conclusion that the prosecutor was meeting her discovery obligation to provide newly discovered information to defense counsel upon its di scovery. (§ 1054.7.) Appellant also contends that the prosecution's improper referral to his shirt as a "wife-beater" constituted prejud icial misconduct. The reference occurred during the prosecution's direct examination of a detective. The relevant exchange
follows: "Q[.] . . . [I]s that how [appellant] appeared [referring to two exhibits] on the night that you detained him? "A[.] Yes, it does. "Q[.] And it looks like he's wear ing some type of black tank top? "A[.] Yes, that's correct. "Q[.] What we commonly refer to as a wife-beater – "THE COURT: I'm going to sustain my own objection. He's wearing a black tank top. " We agree the "wife-beater" referen ce was improper. However, the trial court immediately sustained its own objectio n, and the prosecutor made no further
reference to a "wife-beater" shirt. Th is isolated, brief, improper reference was8 harmless under any standard of review. (Compare People v. Hill, supra , 17 Cal.4th 800 [involving multiple, egregious ac ts of prosecutorial misconduct].)
DISPOSITION The judgment is affirmed. The superi or court clerk is directed to correct the abstract of judgment to show that appellant was convicted by jury.
NOT TO BE PUBLISHED

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.9 Henry J. Hall, Judge
Superior Court County of Los Angeles

________________ ______________

Sally Patrone Brajevich, under appoi ntment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Seni or Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney Genera l, Gary A. Lieberma n, Deputy Attorney General, for Plain tiff and Respondent.