P. v.
Filed 8/1/12 P. v. Flores
CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE FLORES,
Defendant and Appellant.
B232548
(Los Angeles
County
Super. Ct.
No. BA 360296)
APPEAL from
a judgment of the Superior Court
of
County, Frederick N. Wapner, Judge. Affirmed in part; reversed in part and
remanded.
Patrick
Morgan Ford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C.
Johnson and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *
Appellant
Jesse Flores was found guilty by a jury of an
Christopher Ortiz (count I), of an assault by means likely to inflict great
bodily injury (count II),
also on Christopher,
name="_ftnref1" title="">[1] and of battery on Bethany Ortiz (count
III). The jury found true the
allegations as to the assault counts that appellant personally inflicted great
bodily injury on Christopher and, as to all three counts, that the offenses
were committed for the benefit of a criminal
street gang. The appeal is from the
judgment.
Around 10:30 p.m. on August
9, 2009, siblings Bethany and Christopher arrived at their
apartment on Garfield Avenue
in Montebello, along with their
sister Heather and their nine-year-old nephew James. They parked in front so that Heather could
take the sleeping James into their apartment.
Gang
members had previously told Bethany
not to park there. As Bethany
was parking, a car pulled up alongside and the woman driving the car yelled at
her that she knew better than to park there.
Bethany got out of her car;
a man got out of the other car and moved close to Bethany,
preventing her from moving away. The
woman, whose name Bethany later
learned was Monique, got out of her car.
Several men appeared and Monique shouted, “Fuck them up. Fuck them up.”
Christopher,
who was 22 in 2011, and Bethany were standing together. Bethany
was terrified. The men, five or more in
number, started yelling the gang name “Lott Trece.” Appellant, who was among them, got a stick or
crowbar from the car that had driven up next to Bethany’s. Appellant hit Christopher on the back of his
head. Bethany
tried to get between appellant and Christopher, begging appellant not to hit
Christopher because he is an epileptic.
Appellant
pushed Bethany to the ground. Two other men, one of whom was appellant’s
brother Joel, started to pummel Christopher.
Bethany managed to get Christopher into the apartment. The police and paramedics arrived and took
Christopher to the hospital, where he received six stitches and 14 staples.
Bethany
learned appellant’s and Joel’s names from neighbors and passed them on to the
police. The two men were arrested on
August 16, 2009.
Christopher’s
epilepsy has worsened since the attack.
Appellant
is a member of the Lott 13 gang with the moniker “Crook.” A gang expert testified that the crimes that
were committed by appellant were for the benefit of the Lott 13 gang.
1. One Count of a Violation of
Penal Code Section 245, Subdivision (a)(1) Must Be Reversed
Counts I
and II, the assault charges, both alleged violations of Penal Code section 245,
subdivision (a)(1). Until
January 1, 2012, former subdivision (a)(1) of section 245 stated:
“Any person who commits an assault upon the
person of another with a deadly weapon or instrument other than a firearm
great bodily injury shall be punished by imprisonment in the state prison
for two, three, or four years, or in a county jail for not exceeding one year,
or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine
and imprisonment.” (Italics added.) Effective January 1, 2012, the italicized
passage was deleted from subdivision (a)(1) and reenacted as subdivision (a)(4)
of section 245: “Any person who commits an assault upon the person of another by
any means of force likely to produce great bodily injury shall be punished by
imprisonment in the state prison for two, three, or four years, or in a county
jail for not exceeding one year, or by a fine not exceeding ten thousand
dollars ($10,000), or by both the fine and imprisonment.”
Citing People v.
McGee (1993) 15 Cal.App.4th 107, 110, appellant contends since he committed
only one assault, he cannot be convicted of two counts of assault. We have recently held in In re J.L. (2012) 206 Cal.App.4th 1182, 1189, that an assault with
a deadly weapon and an assault likely to produce great bodily injury is one
offense. Respondent agrees that the
judgment on count II should be vacated.
The question is whether the amendment of subdivision
(a)(1) of Penal Code section 245, and the enactment of subdivision (a)(4),
makes a difference.
name="_ftnref2" title="">[2] As People v. McGee explains, the pre-2012 version of subdivision
(a)(1) contained two forms of prohibited conduct but defines only one
offense. Moving one of those forms of
prohibited conduct to a separate subdivision does not make a difference; there
is still only one offense of assault under subdivision (a)(1). Indeed, as the Legislative Counsel’s Digest
of Assembly Bill No. 1026 (Stats. 2011, ch. 183 (2011-2012 Reg. Sess.)
Summary Dig.) states, the intent of the amendments to section 245 was only to
make technical, nonsubstantive changes.
We conclude that count II should be reversed. There is no change in the sentence, as the
trial court stayed the sentence on count II under Penal Code section 654.
2. It Was
Not Error to Admit Evidence of Gang Graffiti
A day or two after the attack, Detective Rodriguez
noticed graffiti on a block wall near the entrance of the parking lot of the
apartment where the attack had taken place.
The graffiti had been recently painted.
There was the letter “V” with an arrow followed by the word “Lott,”
below it was “L Crook,” and below that “Crook” with the letters “DBS” behind
it. The gang expert explained that “V”
stood for the Lott 13 gang, “L. Crook” was appellant’s brother’s Joel’s
moniker, “Crook” was appellant’s moniker and “DBS” stood for the Diablos clique
of the Lott 13 gang.
Appellant objected to the admission of this evidence,
contending it could not be authenticated and that it was hearsay. The trial court overruled the objection,
finding that the graffiti was a verbal act and not hearsay and, to the extent
it was hearsay, that it was an adoptive admission.
“Frequently, an utterance may justify an inference
concerning a fact in issue, regardless of the truth or falsity of the utterance
itself. It is admitted as circumstantial
evidence of that independent fact.”
(1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 36, pp.
718-719.) Whether the attacks took place
on appellant’s gang’s “turf” was an issue in the case. The gang graffiti were circumstantial
evidence of the “independent fact” that the attacks occurred on territory
claimed by appellant’s gang. Viewed from
this perspective, the graffiti were not hearsay.
On the other
hand, as appellant points out, the prosecutor stated in the closing argument
that the graffiti indicated that appellant and his brother were taking
“responsibility” for what happened. In
this sense, the graffiti were intended to be a communication, which would make
them hearsay. However, we agree with the
trial court that the graffiti were adoptive admissions.
There was probative
evidence in the form of the gang expert’s testimony that appellant knew of and
approved the graffiti. The expert
testified that writing appellant’s moniker on the wall without his knowledge
and approval could get the writer assaulted or shot. This means that the requirements of an
adoptive admission were met.
name="_ftnref3" title="">[3] Viewed in this light, the graffiti were an
admission that appellant was a member of the Lott 13 gang.
While
appellant stresses that this case is like People
v. Lewis, supra, 43 Cal.4th at
page 497, when the court concluded it was error to admit certain drawings
because there was no evidence that the defendant made the drawings, in this
case, as respondent points out, there is strong evidence that appellant knew
about the graffiti and approved of them.
In sum, we do not agree with appellant that it was error
to admit evidence about the graffiti. It
is therefore unnecessary to explore appellant’s claim that his due process
rights were violated by the admission of this evidence. (People
v. Nelson (2011) 51 Cal.4th 198, 210, fn. 5.)
3. Evidence About Christopher’s Epilepsy Was Not
Prejudicial
Before a mistrial was declared in appellant’s second trial,
testimony was required to show that Christopher’s epilepsy got worse as a
result of the assault. This position
appears to have steadily eroded until the trial court eventually ruled that
there could be testimony by Christopher, as well as by Bethany, that he was
having more seizures since the attack.
While respondent contends that
Christopher and Bethany were only testifying about the number of seizures and
were not offering opinions about the medical cause of the seizures, this is an
unrealistic view of the matter.
Obviously, the only point of testimony about the number of seizures was
to suggest that they increased because of the assault.
We agree with the trial court’s
initial ruling. Whether a serious blow
to the head can worsen an epileptic condition is a matter for a
We do not agree with appellant,
however, that the admission of lay opinions about this medical issue was
prejudicial. Appellant states that
identification testimony in this case was “weak and uncertain” and that the
testimony about the epilepsy encouraged the jury to make appellant pay for
Christopher’s injury “even if they had a reasonable doubt that he was involved
in the assault.”
The issue was whether appellant hit
Christopher’s head with a stick. Whether
Christopher has epilepsy, and how serious that epilepsy is, is completely
unrelated to this issue. If, as
appellant appears to contend, identification was the key factual issue in the
case, that must have been the jury’s focus.
Christopher’s epilepsy has absolutely no bearing on the question whether
it was appellant who hit Christopher.
That this evidence was so
inflammatory as to sweep the jury off its feet is to give this evidence too
much credit and accord very little credit to the jury. One would think that any reasonable adult
would appreciate that Christopher’s epilepsy had nothing to do with who hit
Christopher.
In sum, the admission of testimony
about Christopher’s epilepsy could have had no effect on the jury’s
deliberations and was therefore not prejudicial error.
4. The Trial Court Reasonably Excluded Evidence
of Bethany’s Prior Juvenile Adjudications
Bethany was 28 at the time she testified in this trial. Appellant sought to impeach her with juvenile
adjudications made when she was 13 and 17 years old. The earlier one was a threat made to a
teacher and the second adjudication was for threatening to mace someone.
Appellant contends that making
threats is a crime of moral turpitude and that these adjudications were not
remote.
We review the trial court’s decision
under the People v. Watson (1956) 46
Cal.2d 818 standard, i.e., we determine whether it is reasonably probable that
a result more favorable to appellant would have occurred in the absence of
error. (People v. Castro (1985) 38 Cal.3d 301, 319.)
Appellant contends that Bethany was
a very important witness in that, unlike Christopher, she told a “generally
consistent story.” Not introducing the
juvenile adjudications, appellant contends, gave Bethany “a false aura of
honesty.”
Two juvenile adjudications that were
more than 10 years in the past had very little, if any, bearing on Bethany’s
truthfulness as a witness. Both
adjudications were based on the impulsive acts of a teenager and while it is
true that these were acts of moral turpitude, they are of vanishing relevancy
to the character of a 28-year-old woman.
It is not likely that the jury would have been moved in the slightest by
these adjudications to disbelieve Bethany.
Thus, even if it was error to exclude these adjudications, it was not
prejudicial.
In any event, we cannot say that the
trial court erred in this regard. The
court found the adjudications to be old, occurring when Bethany was young, and
also thought that under Evidence Code section 352 this evidence would be
confusing in that it was questionable how these adjudications reflected on her
credibility as a witness. The trial
court was reasonable on all of these points.
As we have already noted, these adjudications shed little light on
whether the 28-year-old Bethany, recounting the attack on her brother, could or
should be believed.
5. There Was Evidence That Justified the Flight
Instruction
Appellant objected to the flight
instruction because there was allegedly no evidence that he fled the scene.
The evidence was that after Bethany
got Christopher into the apartment and she began dialing 911, emergency
vehicles started arriving. Detective
Rodriguez arrived on the scene within a minute and a half after the 911 calls. Appellant was not there when he arrived; and
one of 911 calls stated that the attackers had “sped out.”
The nub of it is that appellant was
not there when the police arrived on the heels of the 911 calls. This means that appellant left the scene,
which is another way of saying that he fled.
An instruction may be given on an
inference that can be reasonably drawn from the evidence. (Phillips
v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801, 807; see
generally 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 258, p. 312.) Since appellant had disappeared within
minutes from the scene, it was a reasonable inference that he fled.
It was not error to give this
instruction.
In light of our dispositions of
appellant’s contentions, it is not necessary to address his cumulative error
argument.
The judgment of conviction of count II is reversed and the
case is remanded with directions to correct the
FLIER,
J.
WE CONCUR:
RUBIN, Acting P. J. GRIMES,
J.
name="_ftn1" title="">[1] We
use first names for the sake of clarity.
the respondent’s brief was filed in May 2012. Neither brief comments on the
changes in section 245, which were approved by the Governor on August 5,
2011. (Assem. Bill No. 1026
(2011-2012 Reg. Sess.).)
