Filed 2/27/18 P. v. Alvarez CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL ALEXIS ALVAREZ,

Defendant and Appellant.


G054284

(Super. Ct. No. 14WF1653)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Manuel Alexis Alvarez was convicted of two counts of mayhem and two counts of assault with a deadly weapon—a broken beer bottle—arising out of his involvement in a street fight. He appeals from the ensuing judgment, arguing the court erred by (1) excluding from evidence his spontaneous exculpatory statements; (2) refusing his suggested pinpoint jury instructions pertaining to “third party liability”; and (3) failing to instruct on “attempted mayhem” in connection with one of alleged mayhem counts.
We affirm the judgment. Alvarez’s claimed exculpatory statements were made as he realized he was being detained by police, and thus the trial court could reasonably infer they were calculated statements, rather than spontaneous ones born of the excitement of the fight. Further, we find no error in the court’s refusal of the proposed pinpoint instructions, as they merely restated the prosecution’s burden of proof. Since we presume the jury understood and followed the instructions given, we reject Alvarez’s assertion that the failure to also give the pinpoint instructions was prejudicial. And finally, we agree with the Attorney General’s assertion that even if the trial court erred in failing to instruct the jury on attempted mayhem, the error would have been harmless. Given the jury’s factual finding that Alvarez personally inflicted great bodily injury on both victims, it is not reasonably probable the jury would have convicted Alvarez on a charge of mere attempted mayhem on one of them, had it been instructed on that offense.

FACTS

In the early morning of March 30, 2014, as the bars were closing, a fight broke out between two women. A crowd surrounded them and several other people were attracted to the commotion, with some choosing to join or intervene. A man carrying a case of beer in glass bottles was shoved toward the crowd and the beer bottles fell to the ground and were broken.
Among the participants were Alvarez and some Marines from Marine Corps Base Camp Pendleton. The first of the Marines to enter the fray was Jacob Powell, who said he was attempting to prevent a fight. While he was attempting to pull another male away from others trying to “jump on him,” Powell himself was pushed into the center of the fight and “jumped on “by five or six other men.
A second Marine, Aaron McCormick, saw Powell enmeshed in the fight, with others hitting him, and joined in an attempt to rescue him. McCormick was struck in the face several times, and left the scene out of fear he would be prosecuted by the Marine Corps. When he went into a nearby bathroom, he noticed he had a stab wound on his upper lip, and others on his forehead, the back of his head, and his shoulder.
A security guard found McCormick in the bathroom and summoned police. Because the cut on McCormick’s cheek went “all the way through,” an ambulance was summoned and McCormick was transported to the hospital.
Powell was not sure how he got out of the fight, but believed someone pulled him out. He was dazed, and did not know what had happened. Someone else told him his face was cut, and he then noticed his ear was “actually hanging down” next to his face. He walked a block or two away, and although he saw police officers, he did not approach them or ask them for help, as he was concerned he would get into trouble with the Marine Corps for his involvement in the fight.
A police officer stopped Powell about two blocks away from the fight, and summoned an ambulance. Powell was rushed to the hospital with lacerations to his face and a severed ear. Repairing the damage to Powell’s face and reattaching his ear entailed three surgeries. However, he still suffers lingering effects from the injuries, including nerve damage.
Alvarez was one of several people arrested at the scene. As he was being pulled from the scrum by a police officer and handcuffed, he said, “I don’t want to be handcuffed because I didn’t start it. They hit a girl.” He also said, “He hit a girl and we got into a fight,” and “I didn’t do anything. They hit a pregnant girl. That is why it all started.”
The police obtained several cell phone videos depicting the fight, and Alvarez was charged with two counts of aggravated mayhem in violation of Penal Code section 205 —one in relation to Powell’s injuries and one in relation to McCormick’s injuries—and two counts of assault with a deadly weapon in violation of section 245, subdivision (a)(1). As to the first two counts, it was also alleged that Alvarez used a deadly weapon (a broken beer bottle) within the meaning of section 12022, subdivision (b)(1). And as to the second two counts, it was alleged that Alvarez personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
The prosecution entered two of the cell phone videos into evidence at trial. The defense entered two security camera videos into evidence as well, and various still photos were made from the videos to illustrate specific incidents in the fight. The videos and photos showed Alvarez with a broken beer bottle in his hand, and using it to stab at both Powell and McCormick.
However, there were also photos which showed one of the females who was involved in the original fight, Jessica Perez, making stabbing motions toward Powell’s “face . . . ear . . . neck . . . or shoulder” with a “sharp looking . . . clear object sticking out of her hand” That evidence played a key role in Alvarez’s defense.
Specifically, Alvarez’s counsel argued to the jury that “there’s two or three of four different ways you can look at [the evidence]. An example, the injury to Mr. Powell. You’re going to see in the videos . . . Mr. Alvarez raise his hand and swing it at the face of Mr. Powell. It’s—from the video you can’t tell for sure that he hits him, but . . . he swings and it’s close. And then within one second you’ll see another person, who we’ve already seen has a glass in her hand, put her hand right next to his ear and pull down. [¶] So the possibles are Mr. Alvarez inflicted the injury when he did that swipe. The second possible is that Ms. Perez inflicted the injury when she did the drag. And the third possible is that they both hit him or it’s a combination of something like that. . . . [¶] . . . If you find that those two could be reasonable too, those point to his innocence and you are required by law to accept that those point to his innocence and reject the one that points to his guilt.”
In addition to instructing the jury on aggravated mayhem, the trial court instructed on the lesser included offenses of attempted aggravated mayhem and simple mayhem. However, the court refused to give the jury the pinpoint “third party liability” instructions requested by Alvarez’s counsel, deeming them unnecessarily duplicative and confusing.
The jury convicted Alvarez of the lesser included offense of simple mayhem on counts 1 and 2, and found true the allegation that he personally used a deadly weapon. The jury also found Alvarez guilty of assault with a deadly weapon as charged in counts 3 and 4, and found true that he personally inflicted great bodily injury on both Powell and McCormick in connection with those counts.
The court sentenced Alvarez to a total sentence of 10 years 8 months in prison, including the upper term of 8 years for mayhem in count 1, plus one year for the personal use of a deadly weapon on that count, plus one-third of the midterm on count 2 (16 months), plus an additional four months for the personal use of a deadly weapon on count 2. The court imposed an additional seven years on each of counts 3 and 4 (including the findings of personal infliction of great bodily injury), but stayed those sentences pursuant to section 654.

DISCUSSION

Spontaneous Statement
Alvarez first contends the court erred by excluding from evidence his exculpatory hearsay exclamations that “I don’t want to be handcuffed because I didn’t start it. They hit a girl;” “He hit a girl and we got into a fight;” and “I didn’t do anything. They hit a pregnant girl. That is why it all started.”
Alvarez claims these exclamations qualified for admission into evidence under Evidence Code section 1240, the spontaneous statement exception to the hearsay rule. That statute provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
According to Alvarez, his statements, which came “within a minute or so of [his] attempting to stab McCormick and just as police pulled him from the fight,” were “clearly made while [he] was still under the excitement of the street fight that resulted in two people being seriously injured and before he had a chance to reflect on a fight that was still ongoing.” We are unpersuaded the issue is so clear.
Because a “spontaneous” statement is one made “without deliberation or reflection,” such statements are considered trustworthy on the theory “that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressions and belief.” (People v. Farmer (1989) 47 Cal.3d 888, 903, abrogated on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Thus, “[t]he crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.” (People v. Farmer, supra, 47 Cal.3d at pp. 903-904.) “[U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.” (Id. at p. 904.)
In this case, the trial court rejected Alvarez’s characterization of the statements as instinctive and uninhibited because it concluded Alvarez had made them in “response to him being arrested,” rather than spontaneously as a result of the excitement of the fight. Although Alvarez contends this conclusion is unsupported by the evidence because he was apprehended so quickly after the fight he “did not have any opportunity to contrive and misrepresent his role in the fight,” we disagree. It does not take any extended period of thought to come up with “I didn’t start it” or “I didn’t do anything” when confronted by the police officers breaking up a brawl. Those are obvious conclusory assertions which can be both calculated and essentially instantaneous. Thus, we cannot say the trial court abused its discretion by concluding those statements were made by Alvarez in a calculated manner, in response to being apprehended by police, rather than spontaneously. Consequently, we find no error in its decision to exclude those statements as hearsay.

Pinpoint Instructions
Alvarez next contends the trial court erred by refusing two of his proposed pinpoint instructions addressing “third party liability.” We review this assertion de novo. (People v. Shaw (2002) 97 Cal.App.4th 833, 838 “[A]ssertions of instructional error are reviewed de novo”].)
The purpose of pinpoint instructions is to “relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case.” (People v. Saille (1991) 54 Cal.3d 1103, 1119.) “In a proper instruction, ‘[w]hat is pinpointed is not specific evidence as such, but the theory of the defendant’s case.’” (People v. Wright (1988) 45 Cal.3d. 1126, 1137.) “‘“[I]n appropriate circumstances” a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case . . . . [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation].’” (People v. Hartsch (2010) 49 Cal.4th 472, 500.)
In this case, the apparent goal of the two proposed instructions was to focus the jury’s attention on the possibility that it was Perez, rather than Alvarez, who maimed Powell. Hence, Alvarez’s first proposed instruction stated: “Third Party Liability [¶] Evidence has been offered that a third-party caused the injuries sustained by Jacob Powell. It is not required that the defendant [Mr. Alvarez] prove this fact beyond a reasonable doubt. In order to be entitled to a verdict of acquittal, it is required only that such evidence raise a reasonable doubt in your minds of the defendant’s guilt.”
And Alvarez’s second proposed instruction stated: “Third Party Liability [¶] The prosecution has the burden of establishing that defendant Alvarez is responsible for inflicting the injuries sustained by Jacob Powell. If you have a reasonable doubt as to whether Mr. Alvarez personally inflicted these injuries, he is entitled to a verdict of acquittal.”
The trial court rejected the instructions on the grounds they were duplicative of existing instructions, and confusing. We agree. Both of the proposed instructions restate the burden of proof applicable in a criminal trial, and attempt to explain how that standard should be applied in this case. They are redundant because the jury instructions already included CALCRIM No. 220, the standard instruction setting forth the prosecution’s burden to prove every element of Alvarez’s alleged crimes beyond a reasonable doubt.
Moreover, Alvarez’s proposed instructions were both confusing and misleading. By informing the jury that Alvarez need not prove beyond a reasonable doubt that a third party (i.e., Perez) inflicted Powell’s injuries, and stating it is only required that “the evidence raise a reasonable doubt,” Alvarez’s first proposed instruction suggests he does have some affirmative burden of proof on that issue. But he does not. It is the prosecution’s burden to prove Alvarez personally inflicted Powell’s injuries, not Alvarez’s burden to prove someone else did. Thus, the first proposed instruction is misleading.
And as the Attorney General points out, both proposed instructions suggested that if the jury entertained a reasonable doubt as to whether it was Perez or Alvarez who inflicted Powell’s injuries, Alvarez would be entitled to an unrestricted verdict of acquittal. However, because that evidence would have nothing to do with Alvarez’s culpability for the counts relating to McCormick, that is not an accurate representation of how the jury’s doubt on that point might affect the verdict. Hence, the instructions were confusing.
Alvarez also insists that even if his requested pinpoint instructions were flawed, it was the trial court’s affirmative obligation to “modify the properly requested instruction to eliminate its flaws and to tailor it to fit the facts of the case.” The assertion is overly broad and we reject it as applied to the proposed instructions in this case.
In making that claim, Alvarez relies on People v. Fudge (1994) 7 Cal.4th 1075, a case in which the defendant’s proposed instruction attempted to summarize expert testimony relating to the accuracy of eyewitness identification. The Supreme Court concluded that a defendant was entitled to a neutral instruction focusing the jury’s “‘attention on facts relevant to its determination of the existence of reasonable doubt regarding identification’” (id. at p. 1110), and stated that if the proposed instruction was unduly argumentative, “the trial court should have tailored the instruction to conform to the requirements of [People v. Wright (1988) 45 Cal.3d 1126]” (ibid.). But Alvarez’s proposed instructions had nothing to do with summarizing complicated expert testimony; he was merely attempting to further elucidate the burden of proof—an issue already enshrined in a standard jury instruction. He cites no authority suggesting the trial court was obligated to assist him in that enterprise.
Further, we reject Alvarez’s assertion that by refusing his proposed instructions, the trial court “effectively prevented the jury from finding that Perez, not Alvarez, inflicted the mayhem injuries on Powell.” The assertion makes no sense. Alvarez remained free to argue to the jury—and did—that the evidence supported the conclusion it was Perez, and not he, who inflicted Powell’s injuries. Had the jury agreed with Alvarez’s interpretation of the evidence submitted to it, and followed the burden of proof instructions that were given, the jury would have been obligated to acquit him on that count.
Indeed, as cogently explained by our Supreme Court in People v. Hartsch, supra, 49 Cal.4th 472, third party liability instructions “add little to the standard instruction on reasonable doubt. [Citation.] We have also held that even if such instructions properly pinpoint the theory of third party liability, their omission is not prejudicial because the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party’s liability must be considered in weighing whether the prosecution has met its burden of proof.” (Id. at p. 504.)
We agree and thus reject Alvarez’s claim that his conviction must be reversed because the trial court refused his proposed pinpoint instructions on third party liability.

Lesser Included Offense of Attempted Mayhem
Alvarez’s final contention is that the court erred by failing to instruct the jury on the lesser included offense of attempted mayhem with respect to the count involving Powell. As Alvarez points out, the trial court has a sua sponte duty to instruct the jury on all lesser included offenses to a charged crime “when the evidence raises a question as to whether all of the elements of the charged offense were present [citation] . . . .” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
In this case, the original crime charged was aggravated mayhem, and the trial court did instruct on the lesser included crimes of attempted aggravated mayhem, and mayhem, as well as on the lesser included crimes of battery causing serious bodily injury, simple assault, and simple battery. However, the court did not also instruct on the lesser included crime of attempted mayhem, even though there was evidence from which the jury could have drawn the conclusion that Alvarez made only an ineffective attempt to maim Powell.
We review this claim under the harmless error standard (People v. Rogers (2006) 39 Cal.4th 826, 867-868), and thus “[r]eversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error . . . .” (Id. at p. 868.) Applying that standard, we conclude that to the extent there was error, it was harmless.
The jury was clearly instructed that to convict Alvarez on a count of mayhem involving Powell, it must conclude, beyond a reasonable doubt, that Alvarez “permanently disfigured” Powell, or that he “slit” Powell’s nose, ear or lip. And “[w]e presume the jury understood and followed the court’s instructions.” (People v. Williams (2009) 170 Cal.App.4th 587, 635.)
Consequently, we must presume that when the jury returned the verdict finding Alvarez guilty of mayhem, it had concluded, beyond a reasonable doubt, that it was he who actually inflicted the damage to Powell’s face and ear. And given that view of the evidence, there is no basis to conclude that this jury would have returned a verdict of mere attempted mayhem involving Powell, if given that option. A different array of potential verdicts does not alter the evidence.
In arguing that the failure to instruct on the lesser charge of attempted mayhem was prejudicial, Alvarez seems to assume the jury felt obligated to convict him of some mayhem crime, and in the absence of a lesser option, the jury would have concluded it had no choice but to convict him of the greater one. We cannot agree. If the jury had actually believed Alvarez had not succeeded in inflicting Powell’s injuries—i.e. that Perez, rather than Alvarez slashed Powell’s face and ear—the jury would have presumably acquitted Alvarez on that mayhem count.

DISPOSITION

The judgment is affirmed.



IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.