P. v. Barrios
Filed 8/6/12 P. v. Barrios CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Jason Daniel Barrios,
Defendant and Appellant.
B236387
(Los Angeles
County
Super. Ct.
No. GA082324)
APPEAL from
a judgment of the Superior Court
of
County, Laura F. Priver, Judge. Affirmed.
Vanessa
Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Jason
Daniel Barrios appeals the judgment entered following a jury trial which
resulted in his conviction of attempted
rape (Pen. Code, §§ 664/261, subd. (a)(2))
and assault with the intent to commit a felony (§ 220, subd. (a)(1)). The trial court sentenced Barrios to four
years in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
At about 11:00 a.m. on January 24, 2011, D.J. decided to go on her usual
hike. She started on Pasadena
Avenue in the City of South
Pasadena and walked west along the Los
Angeles River and
the Arroyo by a golf course. That day
she walked all the way to the Rose Bowl.
When she arrived at the Rose Bowl, D.J. turned around and started back,
walking along the same path she had taken there.
At about noon, D.J. was going to cross the street by a
baseball field in the Arroyo Park
area north of the 110 Freeway when she saw Barrios with a skateboard standing
about 20 feet away, leaning against a fence.
He appeared to be just “hanging out.”
D.J. took
note of Barrios, then followed her usual route.
She was on a horse trail, which she followed to go under a freeway
overpass. However, as she approached the
overpass, she heard Barrios “go on the skateboard behind [her].” D.J. went through the tunnel and followed the
trail to an area lined on either side with trees. There, she “saw [Barrios,] with [his]
skateboard coming in the opposite direction.”
When she saw Barrios coming toward her, D.J. became “concerned.” The two individuals crossed paths and made eye
contact. D.J., who was dressed in a
white shirt, a crewneck, baggy black sweatpants and a big hat, said “ ‘Hello.’
” Barrios then, still carrying his
skateboard, crossed D.J.’s path.
“[W]ithin a second, [he had] turned around and tackled [D.J.] from
behind.” He pushed D.J. into a small
clearing. It was like a football tackle
from below the waist and D.J. landed on her hands and knees.
Barrios,
who was on top of D.J., struggled with her and attempted to pull off her
pants. D.J. asked Barrios what he was
doing and continuously told him “ ‘No.’ ” After five or six seconds, D.J. was able to
turn around and face Barrios. He
continued to try to take off her pants and her clothing began to tear. Barrios was on his knees, “trying to control
the situation.” D.J. put her hands and
knees up in an attempt to push Barrios away.
When D.J. again told Barrios “ ‘No[,]’ ” he responded, “ ‘Please I
need this. Please I need this.’ ”
As the two struggled, Barrios
continued to tear at D.J.’s pants until her “hip and [her] butt” were
exposed. D.J. told Barrios, “ ‘No I have
children,’ . . . ‘please don’t do this.’ ”
When Barrios, however, refused to stop, D.J. began to yell the word “ ‘No’ ” at him.
Several seconds later, D.J. heard a
man’s voice call out “ ‘Hey what’s going on’ ” Barrios stopped for a second, then resumed
his attack on D.J. He continued to try
to take off her pants. D.J. was
surprised that Barrios “was continuing because [she] kn[e]w the trail and []
kn[e]w how quickly somebody [could] get into that area.” She continued to fight back and, although
D.J. did not hear the voice again, Barrios suddenly got up, looked around, then
ran back toward the tunnel, leaving his skateboard behind. D.J., who was feeling “[v]ery shakey,” got
up, picked up the skateboard and walked away from the tunnel.
As D.J. walked toward her home, she
encountered a friend and the mother of one of her son’s friends. D.J., who “was dirty[,]” had grass stains,
dirt stains and ripped pants, told her friend about the attack and to “ ‘not go
on the trail.’ ” D.J. did not call the
police immediately after the incident because she “wanted to get home and away
from the area. [She] didn’t want
[Barrios] to see where [she] live[d].
[She] just didn’t want him to see [her] again.”
Tracy Green lives in the City of South
Pasadena and knows D.J. One early afternoon in January 2011, Green,
accompanied by her Golden Retriever, was going for a run down the Arroyo when
she saw D.J. “coming out of the trail that runs right alongside a golf course”
to the Rose Bowl. As Green was running
with her dog, she heard D.J. tell her
not to go into the Arroyo. When she
stopped to talk to D.J., Green could tell that D.J. was “clearly upset.” She was carrying a skateboard and her
sweatpants were torn. D.J. told Green
that a man had attacked her.
When Green
told D.J. that she had her cell phone and that they should call the police,
D.J. responded, “ ‘I’m afraid. I don’t want him following me. I have a daughter. I don’t want him coming after me. I’m leaving.
I’m not staying around here.’ ”
Several hours later, D.J. received
a call from police. She was asked to go
to the South Pasadena Police Station and to bring her torn clothing and the
skateboard with her. While she was at
the station, D.J, was asked to view a lineup of approximately six men and to
identify the person who had assaulted her on the trail. D.J. identified Barrios.
At trial, D.J. identified a
photograph of Barrios. Although the
photograph showed that he was wearing different clothes and had gotten a
haircut since the day of the attack, D.J. recognized him as her assailant. On the day of the hike, he had been wearing
black pants, and a “dark hoodie,” and his hair had been much longer.
With regard to injuries, D.J.
indicated that she had suffered only “minor scrapes” around her “right thigh
area” and her arm. During the attack,
D.J. had repeatedly told Barrios “ ‘No.’ ”
She told him “ ‘No’ ” between 30 and 40 times, yelling it out
approximately 10 times. She also
continuously pushed and “swat[ed]” at him.
During the attack, Barrios did not touch D.J.’s breasts or genital area.
At approximately noon on June
24, 2011, Peter Aston was sitting on a bench in the Arroyo
Park area of South
Pasadena smoking a cigarette when he heard a
scream. It was a female voice and it was
coming from below him, near the area by the horse trail. After the third scream, Aston “realized
something was going on” and, as he heard a fourth scream, he got up and walked
south on the Arroyo to try to determine where the screams were coming
from. He followed the foot path, which
goes down into the Arroyo, meets the horse trail and goes through a tunnel
under the freeway. There is, however, a
lot of shrubbery in the area and Aston could not see past it.
Aston remained on the foot path
until the woman’s screams turned to cries for “ ‘Help.’ ” Aston then ran down the embankment. When he heard a second scream for “ ‘Help,’ ”
Aston called out, “ ‘Are you Okay’ ” and “ ‘I’m coming.’ ” As he ran down the horse trail, he “stopped
because [he saw Barrios] walking [about 10 feet away,] northward.” After making eye contact with Aston, Barrios
pulled his hood down so that it covered his face, then kept on walking through the
tunnel. When Aston asked Barrios
“ ‘What’s going on’ ” Barrios failed to respond, then started to
run. Aston chased Barrios through the
tunnel while yelling, “ ‘Hey you stop that’ ” or “ ‘You get
back.’ ”
When Barrios continued to run,
Aston decided to stop chasing him. It
occurred to Aston that he “didn’t know who [he] was chasing” or “what [he] was
dealing with. [He] didn’t know what was
happening, if [Barrios] had a weapon or not.”
Instead, Aston, who had a phone with him, decided to call 911. During the call, he told the operator that “[s]ome
guy just attacked a girl” and that he was trying to “follow him.” Aston indicated that Barrios had been wearing
“a brown like a flannel shirt, or something like that, long sleeved[,]” and
that he was “Caucasian[,] [a]bout maybe 5ft 11, [and] he had a beanie hat
on.” When asked about the girl, Aston
stated: “I didn’t see her. I just heard her screaming for help.”
Approximately one hour after he
made the 911 call, Aston was asked to go to the “wash” by the horse ranch to
identify the man he had seen running up the tunnel. Aston identified Barrios. At a later hearing, Aston identified
Barrios’s plaid jacket and again identified Barrios as the man he had chased to
the tunnel.
At approximately 1:45 p.m. on January 24, 2011, South Pasadena Police Officer Spencer
Louie was in the vicinity of Arroyo Park
in the City of South Pasadena. He was “[a]ssisting other officers in
attempting to locate an attempt rape suspect.”
About a half mile from where the 110 Freeway meets the horse trail,
Louie “saw [Barrios] with his shirt over his head.” When Barrios revealed his face and hair,
Louie realized that he met the description of the suspect. Louie yelled to Barrios and told him to “come
over here.” Barrios, who looked
“disoriented” and “confused,” complied with the order. Louie eventually placed Barrios in
handcuffs.
Detective Frank Litterini of the
South Pasadena Police Department also responded to the radio call concerning
the attempted rape in the Arroyo Park area.
Litterini recovered a “jacket” with a dark gray or black hood that had
been “stuffed on top of some bushes in a wooded area.” Litterini indicated that the place where he
found the jacket is “kind of a dark area,” near the “racket center” and the
tunnel runs below it.
Litterini read to Barrios his
rights. Although he did not think that
Barrios was under the influence of drugs, alcohol or medication, during his
interview of Barrios, Letterini asked him if he was under the influence of any
of those substances.
2.
Procedural history.
Following a
2011 Barrios was charged by amended information with one count of attempted
forcible rape in violation of sections 664 and 261, subdivision (a)(2) (Count
1) and assault with intent to commit a felony in violation of section 220,
subdivision (a)(1) (Count 2).
Trial was by jury. Prior to trial, the People indicated they
would be seeking to present evidence of D.J.’s statements made to Terry Green
on the theory they amounted to “fresh complaint[s].” Defense counsel objected, indicating that,
not only was the evidence hearsay, but that it would be cumulative and more
prejudicial than probative under Evidence Code section 352.
the witness to “give significant details.”
He simply wanted to show the victim’s demeanor and the “general nature
of the conduct.” The trial court
indicated it would allow the evidence as the prosecutor had described it.
The prosecutor next argued that
Aston’s 911 call was admissible as a contemporaneous statement “because he
[was] under the stress of the situation” when he made it. The trial court indicated that, although the
911 tape would be admitted, the transcript of the tape would be “just to aid
the jury.” The trial court indicated
that it would give a limiting instruction indicating that the tape was the
evidence and was being offered to show “state of mind,” “not for the truth of
the matter[].” Before playing the tape,
the trial court instructed the jury:
“The portions that describe––let me say it this way. Any portion of the 911 call which describes
what the witness is actually seeing at that time is being admitted for all
purposes. Any other portions are
admitted for state of mind only.”
The prosecutor indicated that the
other Evidence Code section 402
name="_ftnref4" title="">[4]
issue was “prior identifications by both [Aston] and the victim.” The prosecutor’s basis for admitting the
evidence was that Aston and D.J. had identified Barrios both in the field and
at the preliminary hearing. The trial
court indicated that “the field [identifications were] clearly
admissible.” The second identifications
could be argued, if need be, at trial.
The prosecutor asserted that he had
a specific photograph which he was intending to use as an exhibit since it
showed all the dirt and debris on Barrios’s pants and, in particular, that
Barrios had trimmed off all of his hair.
The problem was that the photograph showed Barrios standing in front of
a police car with his hands behind his back, making the image somewhat
prejudicial. The trial court indicated
that it believed the photograph was relevant and admissible. It suggested, however, that the prosecutor
“copy it so [that] the car [was] not quite so visible.”
After the presentation of the
prosecution’s evidence, defense counsel indicated that it was his “professional
opinion as [Barrios’s] attorney that he not testify.” Counsel continued: “I’ve spoken with him regarding this. I understand that he has the right to make
that decision. At this juncture I would
ask the court [to] inquire whether he would like to go against my advice and
testify or allow the case to proceed with him invoking his right to remain
silent.” After some discussion, during
which Barrios kept “saying different things,” he ultimately decided not to
testify.
When the People had completed their
case, defense counsel made a motion for a judgment of acquittal pursuant to
section 1118.1. Defense counsel
argued: “I believe the evidence is not
sufficient to show the People’s charges.
I think the more appropriate charges would be what I’ve suggested in
terms of the simple battery and simple assault.
According to the witness she indicated her pants were simply pulled,
no––minor minor injuries. I believe this
would be more attune to an assault and battery versus the more serious charges
alleged.” The trial court denied the
motion, indicating that there was sufficient evidence from “which the jury
[could] rely to find the charges alleged by the People.”
Following argument by the
prosecutor and defense counsel and
instructions from the trial court, the jury began its deliberations. After one day, it was necessary to substitute
in an alternate juror and the deliberations began again. Earlier deliberations were disregarded and
the case was decided as if the earlier deliberations had not taken place.
Sometime later, the trial court
received a message from the foreperson that a verdict had been reached. The foreperson handed the verdict forms to
the bailiff, who handed them to the trial court. The court clerk then read the forms into the
record as follows: “ ‘We the jury in the
above-entitled action find the defendant Jason Daniel Barrios guilty of the
crime of attempted forcible rape in violation of Penal Code section[s]
664/261[, subdivision] (a)(2), a felony, as charged in Count 1 of the
information. This 23rd day of September,
2011 . . . . [¶] Same title, same title court and case. [¶]
‘We . . . the jury in the above-entitled action find the
defendant Jason Daniel Barrios guilty of the crime of assault with intent to
commit a felony in violation of Penal Code section 220[, subdivision] (a)(1), a
felony, as charged in Count 2 of the information. This 23rd day of September, 2011 . . .
.’ ” The jury was polled and each
juror indicated that those had been his or her verdicts.
Barrios was sentenced on September
30, 2011. After indicating that Count 1
and Count 2 were “654,”
name="_ftnref5" title="">[5]
the trial court indicated that, since Count 1 was an attempt, the maximum
sentence which could be imposed was four years.
Count 2, on the other hand, had a sentencing range of “2, 4 and 6.”
The prosecutor asserted that there
were multiple circumstances in aggravation, including the “threat of great
bodily harm to the victim,” a “high degree of callousness,” that the “victim
was particularly vulnerable considering the circumstances of this case” and
that “there [had been] some planning and sophistication in the sense that Mr.
Barrios did target this particular victim.”
In addition, the prosecutor noted that Barrios did not seem “to be a
stable person.” The prosecutor
continued: “I believe he poses a serious
risk to public safety. . . . Insanity
was not a defense and [defense counsel] who is a calming influence could not
keep Mr. Barrios from controlling himself during trial. He had multiple outbursts. I don’t think this is someone who can control
themselves. . . . I feel
the high term is appropriate.”
Julia Barrios, Barrios’s mother,
then addressed the court. She
stated: “My son needs medical attention
that I personally believe would not be given to him in prison. [¶] On
June 24th 2011 he was evaluated by a psychiatrist and moved from the central
jail to the Twin Towers medical facility . . . . He is currently being treated for anxiety,
depression and schizophrenia. I have him
currently on my medical insurance at work and if he is released for time served
or put on probation I can get him the medical attention
needed . . . . [¶] My
son is quiet. He has shown moralities [
others.” She explained that he had been
the “man of the house since [her] ex-husband abandoned [them] many years ago”
and that he had “always been there to give a helping hand.” In addition, Mrs. Barrios claimed that
neither D.J. nor Aston had given an accurate description of her son and that
“this [was] a case of mistaken identity.”
Mrs. Barrios indicated that her son had been “at the wrong place
and at the wrong time.”
Defense counsel argued that, “based
on all of the circumstances,” Barrios should be sentenced to the low term. Counsel indicated that “[h]e is a young man”
and “[h]e has no prior criminal history.”
Counsel stated that, although the charges of which he was convicted are
“very serious,” the testimony of the victim indicated that she was “never hit,”
“never struck” and “never [verbally] threatened.” Moreover, Barrios never touched D.J.’s
breasts or genitals.
After considering the emotional
harm suffered by the victim, the fact that the crime was committed in an area
populated by children, walkers, runners and others who should have the luxury
of feeling safe there, and that Barrios, although young, is not a juvenile, the
trial court sentenced him to the mid-term of four years in state prison as to
Count 2. As to Count 1, the trial
court imposed, then stayed pursuant to section 654, the mid-term of three
years.
Barrios was awarded presentence
custody credit for 250 days actually served and 37 days of conduct credit, or
287 days. He was ordered to pay a $200
restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation
restitution fine (§ 1202.45), a $40 court security fee (§ 1465.8, subd.
(a)(1)) and a $30 criminal conviction assessment (Gov. Code,
§ 70373). The trial court then
ordered Barrios to register as a sex offender upon his release from custody,
each time he changed his residence and each year with five days of his
birthday. Although he was sentenced to
prison “[f]orthwith,” the trial court recommended that he be housed in a mental
health treatment facility.
On September 30, 2011, the day of
sentencing, Barrios filed a notice of appeal.
He indicated that he is indigent and requested the appointment of
counsel. This court appointed counsel to
represent Barrios on appeal on January 23, 2012.
After examination of the record,
counsel filed an opening brief which
raised no issues and requested this court to conduct an independent review of
the record.
By notice filed April 11, 2012, the
clerk of this court advised Barrios to submit within 30 days any contentions,
grounds of appeal or arguments he wished this court to consider. No response has been received to date.
We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
KITCHING, J.
ALDRICH, J.
name="_ftn1" title="">
further statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">
