Filed 1/29/15 P. v. Hinton CA2/5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 FIVE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

RICHARD LAMONT HINTON, 

 Defendant and Appellant. 

 B251315 

 (Los Angeles County 

 Super. Ct. No. BA391305) 

 

APPEAL from a judgment of the Superior Court of Los Angeles County, William 

C. Ryan, Judge. Affirmed as modified. 

 Marilyn G. Burkhardt, 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, Steven D. Matthews and Roberta 

L. Davis, Deputy Attorneys General, for Plaintiff and Respondent. 
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I. INTRODUCTION 

 A jury convicted defendant, Richard Lamont Hinton, of the second degree murder 

of Joseph Gilbert. (Pen. Code, § 187, subd. (a).) Mr. Gilbert died of multiple stab 

wounds. Defendant claimed self-defense, heat of passion or imperfect self-defense. The 

defense was premised on defendant’s alleged actual and reasonable belief Mr. Gilbert had 

a gun. Defendant was sentenced to 16 years to life in state prison. We modify 

defendant’s presentence custody credit. We affirm the judgment in all other respects. 

II. THE EVIDENCE 

 Derrick Townsend and his girlfriend, Lavenia Wilson, invited several people over 

to their apartment in the late evening of Thanksgiving 2011. The guests included a 

friend, Ashley Scott, and her boyfriend, Mr. Gilbert. Mr. Townsend’s friend, Jabari Tate, 

arrived accompanied by defendant. Mr. Tate had known defendant for more than 10 

years. They were close friends and fellow gang members. Neither Mr. Townsend nor 

Ms. Wilson knew defendant. Defendant’s gang and Mr. Gilbert’s gang were rivals. The 

group shared alcohol, marijuana and cocaine. 

 Mr. Gilbert was “hyperactive” and made offensive comments, including words 

disrespectful of defendant’s gang. Sometime later, defendant suddenly assaulted Mr. 

Gilbert. Mr. Townsend, Ms. Wilson and Ms. Scott testified they saw defendant grab Mr. 

Gilbert by the shirt. They saw defendant pull out a folding knife. Defendant then begin 

stabbing Mr. Gilbert in the upper torso. The knife had a four or five-inch blade. Mr. 

Gilbert screamed out that he was being stabbed. All four witnesses—Mr. Townsend, Ms. 

Wilson, Ms. Scott and Mr. Tate—saw Mr. Gilbert reach out with both hands in reaction 

to the attack. Mr. Gilbert did not have anything in his hands. He did not have a gun in 

his hands. 

Ms. Scott tried to stop the attack. She got between defendant and Mr. Gilbert. 

When that happened, defendant reached over her and continued to stab Mr. Gilbert. Ms. 
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Scott suffered a stab wound to the forearm. Mr. Townsend intervened and pulled the two 

men apart. Mr. Tate took the knife from defendant’s hand. 

According to three of the four eyewitnesses, defendant urged Mr. Tate to continue 

the attack. Mr. Townsend heard defendant say: “Just finish him.”; “Finish him off. 

Finish him off.”; “Finish him, blood. Get this crab ass nigger.” Ms. Scott recalled 

defendant saying: “Finish that nigger. Finish that nigger.” Ms. Wilson heard defendant 

say, “Finish him off, Blood.” Mr. Tate, who testified for the defense, heard defendant 

say, “[G]et him off me.” Mr. Townsend and Ms. Scott both estimated defendant stabbed 

Mr. Gilbert 10 to 12 times. Ms. Wilson’s estimate was, “Maybe about 15 times . . . .” In 

fact, defendant stabbed Mr. Gilbert 11 times. 

Mr. Gilbert started to leave the apartment. Defendant attempted to pull Mr. 

Gilbert back in. Mr. Tate intervened again and Mr. Gilbert escaped. Ms. Wilson never 

heard anyone say anything about a gun. She did not see anyone with a gun. Mr. 

Gilbert’s girlfriend, Ms. Scott, testified that during the entire day she had not seen Mr. 

Gilbert with a gun. She had not seen him with any type of weapon at all. Mr. Tate, 

defendant’s friend, also never saw a gun. Mr. Tate described the conversation with 

defendant as they fled the scene. Defendant told Mr. Tate that Mr. Gilbert had a gun. 

According to defendant, Mr. Gilbert was going to use the gun to kill them. 

Defendant testified in his own defense. Defendant was not arrested until several 

months after the murder. He knew the police were looking for him, but he did not turn 

himself in because he was afraid he would lose his freedom. On the evening of the 

stabbing, defendant had been in Mr. Townsend’s apartment for about 45 minutes after 

Mr. Gilbert arrived. Defendant had been introduced to Mr. Gilbert. Mr. Gilbert had been 

“animated” but there had not been any problem between them. Mr. Gilbert did not say 

anything that made defendant angry. Defendant did overhear Mr. Gilbert on a cellular 

telephone call saying, “[M]an, I’m over here in the jungles and I’m out of bounds, but 

I’m all right.” Defendant characterized Mr. Gilbert’s statement thusly: “[I]n my prior 

experience, when I was in the streets, hanging out, when you’re out of bounds, you’re in 
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the neighborhood where you don’t belong. Now, you say you’re all right. That means 

you feel safe. . . . I don’t know why he felt safe, but he felt safe. . . .” 

 Later, defendant prepared to exit the apartment. Mr. Gilbert came up behind 

defendant and nudged defendant in the back with a gun. At the same time, with the other 

hand, Mr. Gilbert reached into defendant’s left jacket pocket. Defendant had his cellular 

telephone, his wallet and cash in that pocket. Defendant turned around and saw a gun in 

Mr. Gilbert’s right hand. It was a small, black, semi-automatic handgun, .32 to .380 

caliber. Mr. Gilbert was pointing the gun at defendant’s mid-chest area. Defendant 

immediately pulled a switchblade knife out of his jacket pocket and engaged the blade. 

Defendant then grabbed Mr. Gilbert. Defendant then stabbed Mr. Gilbert. Defendant 

was yelling to everyone in the room, “[H]e’s got a gun.” Defendant was frightened and 

angry and it happened fast. Defendant testified, “I was in fear of my life.” On crossexamination, defendant repeated: “I feared for my life. I thought he was going to kill 

me.” Defendant had no idea how many times he stabbed Mr. Gilbert. Defendant did not 

know what happened to the gun. Defendant denied saying, “Finish him.” Defendant 

testified: “I said get him away from me. He has a gun. I said don’t let him get me.” 

Defendant then left with Mr. Tate. Defendant searched his pockets as he walked to get 

into a car. Defendant did not know whether Mr. Gilbert took anything. But defendant 

testified his cellular telephone and some money were missing. 

 In rebuttal, Detective Paul Funicello testified concerning an interview with Mr. 

Tate two or three weeks after the stabbing. Detective Funicello described Mr. Tate’s 

statement, “Mr. Tate at no time claimed he saw a gun.” Mr. Tate described what he 

heard during the stabbing: “He said, when he heard the fight, . . . he heard no arguments, 

no yelling, screaming, nothing of that nature. [¶] . . . It was just the sheer motion of the 

sounds of the fight, but no verbal, yelling, screaming, fighting, arguing anything like that. 

[¶] . . . The only thing he told me that he recalled hearing was, once he removed the 

knife from the defendant, the defendant yelled at Tate to get him.” Further, according to 

Mr. Tate, defendant never stated anything about “actually” seeing a gun. Rather, 

defendant said he just “thought” he saw a gun. 
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III. DISCUSSION 

A. Effective Assistance Of Counsel 

 Defendant was represented by Frank Duncan. During direct examination, Mr. 

Duncan, asked defendant about a prior conviction: “Now, Mr. Hinton, you have a 

previous conviction for 417 of the Penal Code, brandishing a firearm?” Defendant 

responded, “Yes.” Defendant contends he was denied effective assistance of counsel. 

Defendant bases this contention on the following: the prior brandishing a firearm 

conviction did not involve moral turpitude and was thus inadmissible for impeachment 

purposes; the evidence was inadmissible under Evidence Code section 352; Mr. Duncan 

could not have had a tactical reason for introducing the prior brandishing a firearm 

conviction; and prejudice resulted. Defendant reasons he was prejudiced because the 

challenged evidence indicated he was a violent person. To prevail on an ineffective 

assistance of counsel claim, defendant must show first, deficient performance, and 

second, prejudice. Prejudice occurs when there is a reasonable probability that, but for 

counsel’s deficient performance, the result would have been different, i.e., more 

favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 693-694; People 

v. Hung Thanh Mai (2013) 57 Cal.4th 986, 1009; People v. Williams (2013) 56 Cal.4th 

630, 690.) However, we need not consider whether Mr. Duncan’s performance was 

deficient. This is because defendant has failed to establish, as a demonstrable reality, that 

he suffered prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. 

Carrasco (2014) 59 Cal.4th 924, 982; People v. Lawley (2002) 27 Cal.4th 102, 136.) 

 The evidence of defendant’s guilt was overwhelming. The eyewitnesses’ accounts 

of the incident were very consistent. None of the eyewitnesses to the stabbing saw a gun 

in Mr. Gilbert’s hand. None of the eyewitnesses heard defendant say anything about a 

gun. All of the eyewitnesses saw Mr. Gilbert’s empty hands reaching out in an attempt to 

disengage from the attack. No gun was ever recovered. Defendant continued to stab the 
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Mr. Gilbert even after Ms. Scott stepped between the two men. Eventually, Mr. Tate 

took the knife from defendant. The witnesses heard defendant urge Mr. Tate to 

“finish . . . off” Mr. Gilbert. Defendant fled the scene. He failed to turn himself in even 

when he knew the police were looking for him. Defendant spoke to Mr. Tate 

immediately after the stabbing. Defendant said he only thought he saw a gun. Defendant 

never said he actually saw a gun. Mr. Duncan asked only one isolated question 

concerning defendant’s prior conviction. No further mention was made of defendant’s 

brandishing a firearm conviction. That defendant had been convicted of brandishing a 

firearm, without more, was not particularly inflammatory. And both Mr. Tate and Ms. 

Scott had prior felony convictions. Further, the jury was instructed to consider 

defendant’s prior conviction only for purposes of assessing his credibility. We presume 

the jury followed that instruction. (People v. Homick (2012) 55 Cal.4th 816, 879; People 

v. Coffman (2004) 34 Cal.4th 1, 73.) Moreover, the jury rejected manslaughter as a lesser 

included offense on a heat of passion or imperfect self-defense theory. There is no 

reasonable probability the result would have been more favorable to defendant had Mr. 

Duncan not elicited the isolated admission concerning the prior brandishing a firearm 

conviction. 

2. Presentence Custody Credit 

 The trial court gave defendant credit for 580 days in presentence custody. We 

asked the parties to brief the question whether defendant was entitled to additional credit. 

Defendant was arrested on January 19, 2012, and sentenced on August 29, 2013. He is 

therefore entitled to 589 days of credit, not 580. (People v. Rajanayagam (2012) 211 

Cal.App.4th 42, 48; People v. Morgain (2009) 177 Cal.App.4th 454, 469.) The judgment 

must be modified and the abstract of judgment amended to so provide. (People v. 

Ramirez (2014) 224 Cal.App.4th 1078, 1086-1087; People v. Blunt (1986) 186 

Cal.App.3d 1594, 1602.) 
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IV. DISPOSITION 

 The judgment is modified to reflect 589 days of presentence custody credit. In all 

other respects, the judgment is affirmed. Upon remittitur issuance, the clerk of the 

superior court is to prepare an amended abstract of judgment and deliver a copy to the 

Department of Corrections and Rehabilitation. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 TURNER, P.J. 

We concur: 

 MOSK, J. 

 GOODMAN, J.

 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.