P. v. >Flores>

 

 

 

 

 

 

 

 

 

 

 

Filed 5/29/13  P. v. Flores
CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   LARRY M. FLORES,               Defendant and Appellant.

B237842         (Los Angeles County       Super. Ct. No. KA091635)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Tia Fisher, Judge.  Affirmed.

            Jamilla
Moore, 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, Eric E. Reynolds and Ana R.
Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

 

 

__________________________________

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            Larry
Flores (appellant) appeals from a judgment entered after a jury found him
guilty of assault with a deadly weapon. 
The trial court sentenced him to six years in prison on the offense plus
an enhancement described below. 
Appellant contends the trial court abused its discretion in responding
to a question from a juror regarding the difference in height between appellant
and his brother, who were standing near each other at the time of the incident.

BACKGROUND

Prosecution Case

            On August 8, 2010, Sylvia Mendez was at a
restaurant/bar with her sisters-in-law, Ruth Mendez and Sonia Mendez.  Appellant also was there with his brothers,
Jerry Flores and Albert Garcia Flores, and others.  Sylvia had known appellant since she “was
little.”  He used to be in a car club
with her father.

            Sylvia,
Ruth and Sonia were sitting at the bar.  According
to Sylvia, appellant stood behind her and kicked the stool she was sitting on a
couple of times.  Sylvia did not
react.  As she was leaving the bar at the
end of the night, Sylvia heard appellant mumble the word “bitch” to her.  She did not respond.  As she exited the establishment to go to the
parking lot, she heard appellant say, “fuck your family.”  Neither Ruth nor Sonia heard appellant say
anything to Sylvia at the bar or upon leaving the restaurant/bar.

            Sylvia got
into Ruth’s car with her sisters-in-law. 
Ruth was in the driver seat, Sylvia was in the front passenger seat and
Sonia was in the backseat directly behind Sylvia.  The window next to Sylvia was rolled down.  As Ruth drove through the parking lot, Sylvia
“flipped [appellant] off.”  In other
words, Sylvia made a hand gesture at appellant where she lifted and showed him
her middle finger.  Appellant was
standing in a group of three or four people on a rock-covered hill.

            Sylvia
testified she saw appellant with an object in his hand and she saw him make
movements like he was throwing the object at her.  Sylvia lifted her right hand to try to block
the object.  She felt something hit her
face.  She noticed her face was bleeding.


            Ruth
testified she heard Sylvia exchange words with appellant before Sylvia “flipped
[appellant] off.”  Ruth saw appellant
bend down and pick something up.  Then
she saw another man walk down the hill behind appellant and bend down like he
was picking something up.  Appellant made
a motion like he was “pull[ing] back to throw something.”  Appellant was about 18 feet away from Ruth’s
car.  Ruth braced herself because she
believed an object was going to hit her car.

            On
rebuttal, Sonia testified she saw appellant bend down, pick something up and
make motions like he was throwing an object. 
Appellant was standing on the hill with one or two other men.

            Ruth drove
a short distance to a Denny’s restaurant where one of the three women called
the police.  Ruth noticed a rock on the
front passenger floorboard of her car which she did not see earlier.

            Officer
Alan Pucciarelli responded to the Denny’s restaurant at about 1:30 a.m.  He observed a laceration on Sylvia’s cheek
and a small cut on her right hand. 
Sylvia required three or four stitches on her cheek.  Officer Pucciarelli  recovered a one-pound rock from the front
passenger floorboard of Ruth’s car.

Defense Case

            Appellant
called Robert Espinoza, Sylvia’s father, as a witness.  Espinoza used to be in a car club with
appellant.  More than five years before
the incident, appellant left the club because he had a problem with how
Espinoza ran it.

            Appellant’s
girlfriend, Jennifer Villafana, testified for the defense.  She was with appellant and his two brothers
at the restaurant/bar on August 8, 2010. 
She did not know Sylvia. 
Villafana did not recall seeing Sylvia at the bar and she did not hear
appellant say anything to her.  As
Villafana, appellant and the rest of their group were leaving the restaurant
and walking to their cars, a car drove by fast and almost hit Villafana.  Appellant pushed Villafana out of the way of
the car.  Appellant “threw his hands up
and told [the people in the car], ‘What the fuck?’”  Villafana did not see appellant pick up a
rock or throw a rock.

            Appellant’s
brother, Jerry Flores, also testified for the defense.  As his group was walking to their cars, a car
drove around a corner fast and Jerry heard the car’s engine rev.  Someone inside the car said, “move out of the
way fat guy,” or something like that.  
Jerry heard the sound of laughing coming from inside the car.  Jerry “picked up a rock like [he] was gonna
throw it,” but he did not throw it at the car. 
Appellant was standing to Jerry’s side, but Jerry did not see what
appellant was doing at that point.  Jerry
did not see appellant pick up a rock.

            On
cross-examination, Jerry testified about the differences between his appearance
and appellant’s appearance at the time of the incident.  Appellant was bigger and heavier than
Jerry.  Appellant had a thick, handlebar
mustache.  Jerry had a thin
mustache.   Appellant had a
“military”-style haircut.  Jerry was
bald.  Jerry is one year younger than
appellant.

            Appellant’s
brother, Albert Garcia Flores, also testified for the defense.  Like Jerry, Albert saw a car drive by and
heard the engine revving.  As the car
drove toward Albert and his group, Albert heard a woman inside the car yell,
“get out of the road you fat son of a bitch.” 
Albert did not see what appellant did after the car drove by.  He did not see appellant or Jerry pick up a
rock or throw a rock.

            The parties
stipulated that Jerry is 5 feet 11½ inches tall and appellant is 6 feet
three-quarters inches tall.

Verdicts and Sentence

            The jury
found appellant guilty of assault with a
deadly weapon, a rock (Pen. Code,href="#_ftn1" name="_ftnref1" title="">>[1]
§ 245, subd. (a)(1)).  The jury found not
true the allegation that appellant personally inflicted great bodily injury on
Sylvia within the meaning of section 12022.7, subdivision (a).

            Appellant
waived jury trial and admitted the special enhancement allegation that he
committed the charged offense while on bail in another case, within the meaning
of section 12022.1.  On the People’s
motion, the trial court struck the prior conviction allegations under the Three
Strikes law (§§ 667, subd. (b)-(i) & 1170.12, subds. (a)-(d)), which were
alleged in the information.

            The trial
court sentenced appellant to six years in prison in this case: the upper term
of four years on the offense, plus a consecutive term of two years on the
enhancement under section 12022.1.  The
court also imposed a one-year consecutive term in the criminal case in which
appellant was on bail when he committed the charged offense in this case.

DISCUSSION

            Appellant
contends the trial court abused its discretion in responding to a question from
a juror regarding the height difference between appellant and Jerry.

Proceedings Below

            During voir
dire a prospective juror (who wound up serving on the jury) indicated that,
during his prior jury service, he wondered why certain evidence was not
presented to the jury.  The trial court
explained that if a juror had a question during trial, he or she could write it
down and the court would decide whether the question should be asked.

            As part of
the court’s preliminary instructions before opening statements, the trial court
instructed the jury with CALCRIM No. 106 regarding juror questions.  Before reading the instruction, the court
stated:  “I’m going to read this
instruction because of the conversation I had with the gentleman who is
currently Juror Number 11, because I talked about it.  But there’s actually an instruction.  And this was relative to the concerns you
expressed on a previous trial and I talked a little bit about if something came
up like that and there’s a procedure.  So
I’m going to read that to you by way of instruction because I want to make sure
that I formalized what I stated to you, sir.”

            Then the
trial court read CALCRIM No. 106, which provides:  “If, during the trial, you have a question
that you believe should be asked of a witness, you may write out the question
and send it to me through the bailiff.  I
will discuss the question with the attorneys and decide whether it should be
asked.  Do not feel slighted or
disappointed if your question is not asked. 
Your question may not be asked for a variety of reasons, including the
reason the question may call for an answer that is inadmissible for legal
reasons.  Also, do not guess the reason
your question was not asked or speculate about what the answer might have
been.  Always remember that you are not
advocates for one side or the other in this case.  You are impartial judges of the facts.”

            As
witnesses testified for the prosecution and the defense, the trial court
repeatedly asked the jurors if they had any questions.  During the defense case, after appellant’s
brothers Jerry and Albert testified, the trial court again asked the jurors if
they had any questions.  Juror No. 9
submitted a written question, inquiring about the difference in height between
appellant and Jerry.  After the court
reviewed the question and held a sidebar conference with counsel, the following
exchange occurred between the court, counsel and others in the courtroom, in
the presence of the jury:

            “The
Court:  I’m going to allow the question
to be asked.  When this happens, I’m the
one who asks the questions rather than the attorneys.

            “I’ve been
told that I think perhaps Jerry is still out in the hallway, and I’m going to
ask Mr. Higgins [the prosecutor] if you’d go ahead and bring him on in.  The question is what is the height difference
between the brothers Larry [appellant] and Jerry.  And rather than have it in inches or
something, I can just have Jerry Flores come on in.  I can have Larry Flores come on up and you
can eyeball it yourself.  Sometimes just
hearing inches or something doesn’t have the same kind of impact.

            “[Defense
counsel]:  I’m going to object.

            “The
Court:  Overruled.  Sir, I’m going to have you come on up here
and just the question was because there were some questions asked of you and
how your size and so on and I’ll just have a deputy -- Mr. Larry Flores, sir,
if you could please stand up maybe behind the chair.  I’m just going to direct it a little bit
because I don’t want Mr. Higgins in the way. 
And then I’m going to just right there, Deputy Loya; is that correct?

            “The
Bailiff:  Yes.

            “The
Court:  Maybe Mr. Larry Flores just go
ahead and face the jury and then Mr. Jerry Flores, any problem with having them
side by side so the jury can -- you don’t know how tall you are.

            “Witness
Jerry Flores:  I don’t know, about 5’9”.

            “The
Court:  And people have shoes on,
too.  This is where things get a little
bit challenging.  Let’s do it this way.  Mr. Flores, you can go ahead and have a
seat.  Mr. Flores, Larry Flores, sir, you
can go ahead and have a seat.  And then
what we can do I’m going to call you back in here and we’re going to deal with
this after we finish up with this witness because that’s -- asking this witness
[Albert] the difference between brothers [appellant and Jerry], understand, any
parent might understand that might be a little bit challenging but we’re going
to see if we can get that question answered.

“Do any jurors have any questions
of this witness other than the question that Juror No. three [sic] raised?  No. 
Mr. Jerry Flores, go ahead and wait out in the hallway, please.  Wait out there.  We’ll have you come back in here again.

“If counsel wishes to inquire of
this witness of that question, that’s fine. 
I’ll leave that up to counsel. 
But I do intend to follow through in the manner, you know, figure out
some way to get a more objective standard.” 
Counsel did not have further questions for Albert and he was excused.

            Outside the
presence of the jury, the trial court allowed defense counsel “to make a record
as to why you think the question is objectionable.”  Defense counsel responded:  “I think that it’s not for the jury to ask
any questions at all with the testimony or anything.  You know, the presentation of the evidence is
for the attorneys and with certain limitations to the court.  [¶] . . . [¶] 
So the jury does not have that right to ask any questions.”

            The trial
court overruled defense counsel’s objection on grounds it was untimely.  The court pointed out counsel did not object
to the procedure for juror questions when the court explained it during voir
dire.  Counsel did not object when the
court again explained the procedure before opening statements when it
instructed with CALCRIM No. 106.  Nor did
counsel object when other jurors submitted questions during the prosecution
case which were answered by the witnesses. 
The court stated:  “Now you’re
objecting about the whole procedure that we’ve been following the whole trial
and there never was an objection.  It’s
untimely, but there is a procedure in place that authorizes juror questioning
and the instruction needs to be read and the procedure needs to be followed and
that’s what I’m doing.”

            After a
recess, the trial court stated to the jurors: 
“It took a little while, ladies and gentleman, because we were involved
in some measuring and have with the assistance of under the guiding hand of the
court, that would be me, simply giving instructions from afar, to Mr. De La
Mora [defense counsel] and Mr. Higgins and as to how to measure as in stand
with the back to the wall and, you know, put a straight object across and make
a mark and so on and so forth.  They have
done so with Mr. Larry Flores as well as we had Jerry Flores come on in here.  I made sure that Jerry took his shoes
off.  The lawyers are now at a point
where they are prepared to stipulate to the heights based on the inquiry of
Juror three [sic].

            “And a
stipulation, ladies and gentlemen, when the attorneys stipulate, and I’ve
indicated I will accept the stipulation, that stipulation means that this is
proven fact.  That’s what a stipulation
is.  And that’s why I was just explaining
what was going on because it -- given the care which both counsel and the court
have taken through the trial, they just ensure that -- when things are marked
and so on, that it’s not necessarily using words that can mean different things
to different people but having a sense of measurement and that’s what height
ultimately is.

            “So Mr. De
La Mora and Mr. Higgins, my understanding, gentlemen, is that you’ve reached a
stipulation that Mr. Jerry Flores is 5 feet 11 and a half inches and that Mr.
Larry Flores, the defendant, is 6 feet and three-quarters inches.”

            Counsel did
not object to the trial court’s comments. 
The parties stipulated as set forth above.

            The
following day, in response to a different question submitted by another juror,
the trial court reread to the jury CALCRIM No. 106 (quoted above) regarding the
procedure for juror questions.

Analysis

            As set
forth above, Flores contends the trial court abused its discretion in
responding to Juror No. 9’s question about the difference in height between
appellant and Jerry.  Specifically,
Flores argues the court erred in responding to the juror’s question by
conducting a measurement of appellant and Jerry rather than by eliciting
testimony from a witness regarding the height difference.

Moreover, Flores argues the court’s
comments to the jury about the parties’ stipulation were erroneous because the
comments constitute “testimony [by the court] describing and vouching for the
reliability of the out-of-court measurement process.”  Flores asserts the court’s “testimony”
“rendered appellant’s trial fundamentally unfair and violative of due process,
denied appellant his confrontation clause rights, and rendered his conviction
and sentence unreliable, in violation of his rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution, and
parallel provisions of the California Constitution.”  Flores also asserts the court acted as a
biased advocate, and Flores was denied an opportunity to cross-examine the
court’s “testimony.”

            >Forfeiture

            The
Attorney General argues Flores has forfeited his claim regarding the trial
court’s response to Juror No. 9’s question. 
We agree.

            As discussed
above, defense counsel objected when the trial court brought Jerry into the
courtroom to stand next to appellant for measurement.  Outside the presence of the jury, the court
gave defense counsel an opportunity to “to make a record as to why you think the
question is objectionable.”   Defense
counsel explained it was not the particular question he believed was
objectionable.  He stated:  “I think that it’s not for the jury to ask
any questions at all with the testimony or anything.  You know, the presentation of the evidence is
for the attorneys and with certain limitations to the court.  [¶] . . . [¶] 
So the jury does not have that right to ask any questions.”  The trial court properly overruled the
objection on grounds defense counsel did not object to the procedure regarding
juror questions when the court explained it during voir dire, when the court
read CALCRIM No. 106 (quoted above), or when other jurors asked questions
during the prosecution’s case.

            At no time
did Flores object on any of the constitutional grounds raised on appeal.  (See, e.g., People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19 [confrontation
clause claim not raised in the trial court is forfeited]; People v. Heard (2003) 31 Cal.4th 946, 972, fn. 12 [due process
claim not raised in the trial court is forfeited].)  He did not object to the measuring process or
the trial court’s comments regarding the measuring process.  He did not express any complaint with the
manner in which the court responded to the question.  Defense counsel merely stated jurors should
not be permitted to ask questions at all, a claim he does not reiterate on
appeal.  Flores has forfeited his claim
regarding the manner in which the trial court responded to Juror No. 9’s question. 

              In his appellate reply brief, Flores argues
his claim is not forfeited because he did not have a full and fair opportunity
to make his objection.  The record does
not support his claim.

            In any
event, assuming Flores had not forfeited his claim, we would reject it for the
reasons stated below. 

            >Stipulation

            In response
to Juror No. 9’s question, the parties stipulated that Jerry is 5 feet 11 and
one-half inches tall and appellant is 6 feet three-quarters inches tall.href="#_ftn2" name="_ftnref2" title="">>[2]  Before reading the stipulation, the trial
court informed the parties, “that stipulation means that this is a proven
fact.”  Moreover, the court instructed
the jury with CALCRIM No. 222 which provides, in pertinent part:  “During the trial, you were told that the
People and the defense agreed, or stipulated, to certain facts.  This means that they both accept those facts
as true.  Because there is no dispute
about those facts you must also accept them as true.”

            The
measuring process and the trial court’s comments about the measuring process
are immaterial.  They are surplusage.  The jury had to accept the measurement as
stipulated by the parties.  As discussed
above, Flores did not object to the measuring process or dispute the
measurement.

            >Measuring process and trial court’s
comments

            The trial
court did not show bias or act as an advocate. 
The inquiry was initiated by a juror. 
The manner in which the court responded did not favor one party over the
other.

            Flores
indicates the trial court was required to respond to the juror’s question by
asking a witness to testify regarding the height difference between appellant
and Jerry.  The court was looking for an
objective way to respond to the question, rather than asking Albert (the
witness on the stand) if he knew the difference in height between his brothers,
appellant and Jerry.  In any event, the
in-court height comparison was not completed and the response to the question
was given in the form of a stipulation between the parties.href="#_ftn3" name="_ftnref3" title="">>[3]

            There was
no Confrontation Clause violation. 
Flores’s argument he was denied an opportunity to cross-examine the
trial court’s “testimony” is without merit. 
The court’s comments about the measuring process which led to the
stipulation do not constitute “testimony.” 
We do not believe the jury was confused and thought the court’s comments
were evidence.  Nor do we believe the
court’s comments caused the jury to evaluate the evidence differently than if
the jury had only heard the stipulation. 
During voir dire, the trial court informed the jury, “what I think about
the facts is utterly and completely meaningless because I’m not the judge of
the facts.  You are.”  The court also instructed the jury with
CALCRIM No. 3550 which provides, in pertinent part:  “Do not take anything I said or did during
the trial as an indication what I think about the facts, witnesses, or what
your verdict should be.”  Moreover, as
discussed above, the court instructed the jury with CALCRIM No. 222 regarding
stipulations.  We have no reason to
believe the jury was confused by the absence of a contemporaneous instruction
regarding the court’s comments.

            Appellant
has not established error.

DISPOSITION

            The
judgment is affirmed.

NOT TO BE PUBLISHED.

           

 

                                                                                                            CHANEY,
J.

We concur:

 

 

 

                        ROTHSCHILD,
Acting P. J.

 

 

 

                        JOHNSON,
J.