United States v. Celaya

126 F. App'x 360

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2005
• Docket: No. 04-10094; D.C. No. CR-03-00872-EHC
• Status: Published

Opinion

MEMORANDUM

**

Tommy Celaya, Jr. appeals a judgment of the district court convicting him of assault resulting in serious bodily injury within the Apache Indian Reservation, a violation of 18 U.S.C. §§ 113(a)(6) and 1153, and sentencing him to 117 months in prison.

Celaya contends that the district court committed plain error by failing to sua sponte instruct the jury as to the definition of assault, by failing to instruct the jury that an assault must be committed intentionally, and by including a definition of “knowingly.” We disagree. Ample evidence was adduced at trial that Celaya viciously assaulted the victim and did so intentionally. See United States v. Belgard, 894 F.2d 1092, 1094-95 (9th Cir. 1990); see also United States v. Wagner, 834 F.2d 1474, 1485 (9th Cir.1987). In addition, the jury’s question did not reflect confusion about a central issue in the case. Cf. Powell v. United States, 347 F.2d 156, 157 (9th Cir.1965). Under these circumstances, we cannot conclude that plain error occurred, even if the instructions were less than ideal. See Belgard, 894 F.2d at 1095.

Celaya also contends that the district court abused its discretion by refusing Celaya’s requested jury instruction on self-defense. A defendant is entitled to a jury instruction regarding his theory of defense if it is legally sound and founded in the evidence. See Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir.2004). Celaya offered no evidence that the force he used to assault the victim was reasonably necessary under the circumstances, an element of self-defense. See United States v. Keiser, 57 F.3d 847, 851 (9th Cir.1995). Therefore, Celaya did not present sufficient evidence to warrant a self-defense instruction. Cf. United States v. Morton, 999 F.2d 435, 437-39 (9th Cir.1993).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.