Filed 1/29/15 P. v. Hinton CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Superi or Court of Los Angeles County, William C. Ryan, Judge. Affirmed as modified. Marilyn G. Burkhardt, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.2 I. INTRODUCTION

A jury convicted defendant, Richard Lamont Hinton, of the second degree murder of Joseph Gilbert. (Pen. Code, § 187, su bd. (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 ye ars 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, La venia Wilson, invited several people over to their apartment in the la te evening of Thanksgiving 2011. The guests included a friend, Ashley Scott, and her b oyfriend, Mr. Gilbert. Mr. To wnsend’s friend, Jabari Tate, arrived accompanied by defendant. Mr. Tate had known defendant for more than 10 years. They were close friends and fello w gang members. Neith er 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 ma de offensive comments, including words disrespectful of defendant’s gang. Sometim e later, defendant suddenly assaulted Mr. Gilbert. Mr. Townsend, Ms. Wilson and Ms. Sc ott testified they saw defendant grab Mr. Gilbert by the shirt. They sa w defendant pull out a folding kn ife. Defendant then begin stabbing Mr. Gilbert in the upper torso. Th e knife had a four or five-inch blade. Mr. Gilbert screamed out that he was being sta bbed. All four witnesses—Mr. Townsend, Ms. Wilson, Ms. Scott and Mr. Tate—saw Mr. Gilb ert reach out with both hands in reaction to the attack. Mr. Gilbert did not have anyt hing 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, de fendant reached over her and conti nued to stab Mr. Gilbert. Ms.3 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 fo ur eyewitnesses, defendant ur ged Mr. Tate to continue
the attack. Mr. Townsend hear d defendant say: “Just fini sh him.”; “Finish him off. Finish him off.”; “Finish him, blood. Get this crab ass nigger.” Ms. Scott recalled defendant saying: “Finish that nigger. Fini sh that nigger.” Ms. Wilson heard defendant say, “Finish him off, Blood.” Mr. Tate, who testified for the defe nse, heard defendant say, “[G]et him off me.” M r. 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 apartm ent. Defendant attempted to pull Mr.
Gilbert back in. Mr. Tate in tervened 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 th at during the entire day she had not seen Mr. Gilbert with a gun. She had not seen him w ith 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 scen e. Defendant told Mr. Tate that Mr. Gilbert had a gun. According to defendant, Mr. Gilbert was going to use the gu n 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 a fraid he would lose his freed om. On the evening of the stabbing, defendant had been in Mr. Townsend’s apartmen t for about 45 minutes after
Mr. Gilbert arrived. Defendant had been introd uced to Mr. Gilbert. Mr. Gilbert had been “animated” but there had not been any proble m between them. Mr. Gilbert did not say anything that made defendant angry. Defe ndant 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 st reets, hanging out, when you ’re out of bounds, you’re in4 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 ap artment. Mr. Gilbert came up behind defendant and nudged defe ndant in the back with a gun. At the sa me 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. Defend ant then stabbed Mr. Gilbert. Defendant was yelling to everyone in th e 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 though t 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 sa ying, “Finish him.” Defendant testified: “I said get him away from me. He has a gun. I said do n’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 te stified 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 shee r motion of the sounds of the fight, but no verbal, yelling, scre aming, 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.5 III. DISCUSSION

A. Effective Assistance Of Counsel

Defendant was represented by Frank Duncan. During direct examination, Mr. Duncan, asked defendant about a prior conv iction: “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 eff ective assistance of counsel.
Defendant bases this contention on the fo llowing: the prior brandishing a firearm
conviction did not involve mo ral turpitude and was thus inadmissible for impeachment purposes; the evidence was in admissible under Evidence C ode section 352; Mr. Duncan
could not have had a tactical reason for in troducing the prior brandishing a firearm conviction; and prejudice resu lted. Defendant reasons he was prejudiced because the challenged evidence indicated he was a violen t person. To preva il on an ineffective assistance of counsel claim, defendant must show first, deficient performance, and second, prejudice. Prejudice occurs when th ere is a reasonable probability that, but for counsel’s deficient performan ce, the result would have b een 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 dem onstrable 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 ove rwhelming. 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 eyewitn esses heard defendant say anything about a gun. All of the eyewitnesses saw Mr. Gilbert’s empty hands re aching out in an attempt to disengage from the attack. No gun was ever re covered. Defendant c ontinued to stab the6 Mr. Gilbert even after Ms. Scott stepped be tween the two men. Eventually, Mr. Tate
took the knife from defendant. The witne sses 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 we re looking for him. Defe ndant spoke to Mr. Tate immediately after the stabbi ng. 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 defe ndant had been convict ed of brandishing a firearm, without more, was not particularly inflammatory. And both Mr. Tate and Ms. Scott had prior felony convictions. Furthe r, the jury was instru cted 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-def ense theory. There is no reasonable probability the result would have been more favor able to defendant had Mr.
Duncan not elicited the isolat ed admission concerning the prior brandishing a firearm
conviction.

2. Presentence Custody Credit

The trial court gave defendant credit for 580 days in presente nce custody. We asked the parties to brief the question whether defe ndant 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.)7 IV. DISPOSITION

The judgment is modified to reflect 589 da ys 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 abst ract of judgment and deliver a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHE D IN THE OFFICIAL REPORTS

TURNER, P.J.

We concur:

MOSK, J.

GOODMAN, J. 

 Judge of the Los Angeles Superior Cour t, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.