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People v. Dominguez1/12/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Following a jury trial, defendant was found guilty of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). In addition, the jury found true the allegations that in the commission of the assault the defendant personally used a dangerous and deadly weapon, a knife, within the meaning of Penal Code sections 667 and 1192.7; and personally inflicted great bodily injury upon the victim within the meaning of Penal Code sections 12022.7, subdivision (a) and 1203, subdivision (e)(3).
The court sentenced defendant to six years, consisting of the midterm of three years for the assault conviction, and a three-year term for the great bodily injury enhancement.
Defendant filed a timely notice of appeal.
On appeal defendant contends that the court erred in refusing to instruct the jury that it could consider the evidence of the victim's prior assaults and threats as proof that the victim was the aggressor in the charged crime. For the reasons outlined in this opinion, we affirm. Facts and Proceedings Below Prosecution Case
The victim Alfredo Cordero testified that he and defendant were friends. On May 10, 2003, he telephoned defendant and asked him to accompany him to buy a pig at a friend's ranch. Cordero drove with his girlfriend Linda Cuen, and their baby to defendant's house where they picked up defendant and his girlfriend Diane.
Defendant and Diane drank beer as Cordero drove to the ranch. When they arrived at the ranch defendant took out a knife and showed the others how sharp it was. The knife was a 110 buck knife that was about 4½ to 5 inches long. The knife was used to slaughter the pig.
At about 10 p.m., they left the ranch and began driving home along Mount Hamilton Road. According to Cordero, defendant had "a couple few too many drinks" and became "obnoxious" and "very loud and vulgar." About 20 minutes into the trip, defendant began arguing with Diane and Cordero about whether they should return to the ranch to retrieve some videos that he thought had been left there. Cordero stopped the car and found the videos in a bag in the trunk of the car. For a while defendant became "mellow and cool again."
As they were driving, Diane wanted to stop to use a restroom. Cordero suggested that they stop at an outhouse that was coming up. Defendant told Cordero to pull over so that Diane could relieve herself behind a tree. Defendant started becoming obnoxious around this time. Repeatedly, Cordero warned defendant to "hold it down" because his baby was sleeping. Defendant was still drinking beer. He ignored Cordero's requests to be quiet. Eventually, Cordero became angry and threatened to stop the car and make defendant walk home. Defendant continued using vulgar language until Cordero stopped the car and told defendant that he would have to walk. Cordero got out of the car and walked around to the back. Defendant got out of the car, but Diane and Linda remained inside. When Cordero and defendant met at the back of the car defendant reached out and stabbed Cordero.
At first Cordero thought that he had been punched in the chest. Then, he realized that he had blood on his shirt. When he saw blood starting to pour out, he realized that he had been stabbed.
Cordero told Linda that he had been stabbed. At that time, defendant stabbed h
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