P. v. Reyes
Filed 7/20/12 P. v. Reyes CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
EUTIMIO REYES,
Defendant
and Appellant.
B234367
(Los
Angeles County
Super. Ct.
No. BA369536)
APPEAL
from a judgment of the Superior Court
of
County. Frederick N.
Wapner, Judge. Affirmed.
Janice Wellborn,
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, James William Bilderback
II and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
Defendant
Eutimio Reyes appeals his convictions of three felonies arising out of an
assault on his former girlfriend Allyson F., and one count of felony stalking,
also of Allyson F. His sole
convictions is supported by substantial evidence. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The
violent episode that gave rise to the most serious convictions took place in
2009. Defendant and Allyson, however,
first started dating in late 2002, when Allyson was a sophomore in
college. The early part of the
relationship has some bearing on the incident in question, so we start our
factual discussion there.
Shortly
after they began dating, defendant moved into Allyson’s condominium near
downtown Los Angeles. The relationship soon turned sour, and
defendant became verbally abusive, calling Allyson a “bitch,” a “slut,” and
other epithets. The two argued
regularly. In early 2003, the abuse
became physical, and Allyson often had bruises on her body. Defendant’s sister, Dalila, a Navy veteran
who had served in Iraq,
testified that around that time she saw bruises on Allyson’s side and
arms. Allyson often wore long-sleeved
sweaters on warm days in an apparent effort to hide her injuries. Dalila connected the appearance of these
bruises to the time when defendant’s goal of becoming an Olympic boxer failed
to materialize. Allyson testified that
during 2003-2006, while they were living together, defendant choked, shoved,
hit, slapped, kicked, and pushed her.
The
first incident about which Allyson provided some detail occurred in February
2004, when, shortly before she went to Hawaii,
defendant became “very physical, and I was just all bruised.” She described defendant “grabbing me, pushing
me, pulling me around, hitting at me.”
The next altercation was in November 2004 when Allyson and defendant
starting arguing on the way home from dinner.
The disagreement escalated into a “physical fight,” with defendant
pushing Allyson. She testified she “was
really scared” and called defendant’s sister.
Eventually the police were summoned but Allyson did not pursue
charges. Following the November 2004
fight, Allyson began recording incidents of domestic violence in her journal,
often with the words, “bad night” or “domestic,” or in some instances by using
a “sad face” emoticon.
The
next incident that Allyson recounted occurred the night of October 27, 2006, as she drove defendant
back to their home. An argument
eventually prompted defendant to strike Allyson in the face while she was
driving. The blow split her lip and
caused blood to “gush.” When they got
home, Allyson locked herself in the bathroom and took photographs of herself
with her cell phone, but did not call the police. The photographs were admitted into
evidence.
Shortly
thereafter, defendant moved out of Allyson’s condominium although the stated
reason for his departure was that defendant had two pit bulls and the
homeowners association would not allow the dogs to stay.
After
defendant moved out, the two continued to date, eventually breaking up in
September 2007. Between 2007 and 2009,
defendant made several threatening calls and left threatening text messages,
even after some of the events we describe next.
In several of the phone calls, defendant told Allyson he had either been
watching her on a date with another man, or knew what she was wearing, or had
watched her in her apartment.
The
assault which formed the basis of the principal charges against defendant
occurred in the late evening of September 9 and the early morning hours of September 10, 2009. Several days before, defendant had called
Allyson at 2:00 a.m., sounding
out of sorts and saying he was stuck and needed someone to pick him up. Allyson knew defendant’s family was out of
town at a reunion, so “reluctantly” she agreed to get him. When Allyson arrived at where defendant had
been stranded, he got in the car, and she started to drive around but defendant
would not say where he wanted to go.
Eventually she allowed him to spend the night at her condominium. He became verbal, but not physical, and the
two were not romantic with each other.
Defendant left in the morning.
He
next called on September 8, apologizing for his conduct a few days earlier, and
offering to take her to dinner in appreciation for having picked him up late at
night. At dinner that evening, defendant
became verbally abusive, and the two left the restaurant early. Allyson dropped defendant off some place that
she could not remember.
Defendant
called the next day, the 9th, apologizing for the night before and asking for
another chance at dinner. At least in
part because she could not believe that “he was treating me that way,” she
agreed to the second dinner. Allyson
testified that the two of them were “having such a nice time” at dinner. “[A]nd that’s the first time I remember going
out at that time and him not being rude or calling me a bitch or being
mean. He was pleasant.” They decided to rent a movie and go back to
her condo. Defendant started drinking –
Allyson did not – and eventually became drunk and belligerent when there was no
more orange juice for the vodka. Allyson
asked defendant to leave and he did so without incident.
Moments
later, defendant called from the condominium garage on a house phone that could
be answered in Allyson’s residence. He
said he had left his cell phone upstairs, and started yelling at her. After searching for the phone without
success, Allyson agreed to let defendant back into the apartment to look for
himself. Allyson looked in the bathroom,
but the phone was not there. As she
turned around to leave the bathroom, defendant was right behind her, pointing a
knife “within inches” of her face. The
blade was towards her neck. The knife
had come from the kitchen and was the largest one Allyson owned. Allyson was petrified and screamed. Defendant started to laugh hysterically,
followed by: “Oh, no, no, no. This isn’t – I’m not going to hurt you. This is for you to use on me.” He then handed her the knife. She pretended to be calm and returned the
knife to its holder in the kitchen.
Allyson
next used her landline phone to call defendant’s mother for help – Allyson had
a close relationship with defendant’s parents and sisters – but got only an
answering machine. Defendant took the
phone from her and threw it against the wall, breaking the phone. He then destroyed her cell phone and ripped
the wires from the house phone (the one that had been used to talk to defendant
in the garage and which could be used to call night security).
Defendant
laid down on a futon in the front room and pretended to sleep, but Allyson did
not leave, out of fear for what defendant might do to her apartment and her
pets. Eventually defendant got up and
Allyson started to lead him towards the front door. At that point defendant stopped, turned and
dragged Allyson up and over the living room couch. Defendant pulled her by the legs to a place
near a turtle tank. He got on top of her
– “sitting on top of me” – and started to choke her by pressing his forearm
across her neck. Allyson was screaming
and asking him to stop. At that point
defendant said to Allyson that she is “gonna die, this is it.” She testified he told her, “If I won’t shut
the fuck up, he will snap my neck in 21 places, or he will put my head in the
turtle tank and electrocute me.” He
rambled on about killing her and then he started to cry and said he was going
to kill himself.
Defendant
let up, and Allyson freed herself. She
ran to the front door but it was locked and latched. (Defendant apparently had put on the dead
bolt and the chain.) Allyson ran toward
the patio door, intending to jump off the fourth floor balcony. “I was going to jump out. There was no other way for me to get
out. And I knew he was gonna kill me, so
I thought I may as well jump. I have
better a [sic] chance.” Defendant grabbed at her, and as he pulled
her away from the sliding door, the door handle broke and they both tumbled
backwards. The momentum of the fall
resulted in a cut opening on defendant’s head, the result of either being
struck by the handle or hitting his head on the floor. Allyson was momentarily released from
defendant’s grip, and she ran towards the front door again. He prevented her from leaving and dragged her
to the master bathroom. He shut the door
to the bathroom and was laughing saying “somebody was gonna die.” Defendant next started to take the belt off
from around his waist, and said “Someone’s gonna die tonight. Who is it gonna be, you or me” He put the belt around his own neck, and laid
down on his stomach. Then he gave
Allyson the belt, but she dropped it and finally was able to open the front
door and ran out. She called the doorman
on the elevator phone and eventually ran to where the doorman was
stationed.
The
doorman, Sam Payne, testified that Allyson seemed panicked when she was on the
phone and when he saw her in person she looked scared. He saw blood over her face and hair, but
Allyson told him that was defendant’s blood from a cut opened when he hit his head
on the floor.
Prosecution
witness Alicia S. testified she was assaulted by defendant in October
2000. She had dated defendant for four
years while they were in high school, but by 2000 they would only see each
other occasionally and were not dating.
On Halloween night she came home from work late and felt she was being
watched. She arrived in her apartment
where a male work colleague was staying for a few days. There was no romantic involvement. As she was getting ready for bed, she heard a
loud noise and then saw defendant standing in the apartment. He threatened and pushed the male friend who
left. Defendant forced Alicia into her
bedroom and threatened her life.
Defendant pushed her to the ground, straddled her, and put a pillow over
her head. He then took off his belt and
wrapped it around her neck. At that
point the police arrived, and defendant was taken away. Afterwards defendant continued to telephone
Alicia, but she refused to take his calls.
Prosecution
witness Sandra Baca, an expert on Intimate Partner Battering (sometimes called
Battered Women’s Syndrome), had not interviewed any of the parties, nor had she
read police reports. She said battered
partners often minimize threats and battering.
They often blame themselves for the violence, rationalizing that if a
person who I love has done this, it must be because I deserve it. Victims often stay in a relationship, buoyed
by the good times, convinced that things have turned around. Victims also stay because they are afraid of
being killed if they try to leave.
Police
officers were called by both sides. They
generally corroborated the events as described by Allyson. There were some inconsistencies between what
Allyson testified to and what she either told police or they had observed. Telephone records revealed several calls from
defendant’s phone to Allyson as late as 2010.
Defense
witness Ann P. testified to an incident in 2006 where Allyson stormed into
defendant’s residence during the time period in which Ann and defendant had a
romantic relationship. She said that
Allyson yelled at both of them and eventually destroyed Ann’s cell phone. Allyson admitted the incident generally but
denied vandalizing the cell phone.
Defendant
was charged with seven counts. All but
one arose out of the September 9-10, 2009, incident. These six charges were false imprisonment
with violence (Pen. Code, § 236); making of criminal threats (Pen. Code,
§ 422); corporal injury to a cohabitant (Pen. Code, § 273.5);
destruction of a cell phone (Pen. Code, § 591.5); cutting a utility line
(Pen. Code, § 591); and assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)). The seventh
charge, stalking (Pen. Code, § 646.9 subd.(a)) was alleged to have
occurred between February 1, 2007, and March 30, 2010.
Defendant
was convicted of false imprisonment
with violence, criminal threats, assault with a deadly weapon, and
stalking. He was found not guilty of
destruction of a cell phone and mistrials were declared as to the two remaining
counts, which were then dismissed.
Defendant received a five-year sentence, composed of the midterm three
years on the assault with a deadly weapon charge and eight months consecutive
on the other three convictions.
DISCUSSION
Defendant
makes a single contention on appeal:
that the evidence was insufficient as to all counts. He asserts both state and federal
constitutional error. As such, we apply
the familiar rules of appellate review. To determine the
appellate court reviews the entire record in the light most favorable to the
prosecution to determine whether it contains evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find
the defendant guilty beyond a reasonable doubt.
The pertinent inquiry is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” (People
v. Rodriguez (1999) 20 Cal.4th 1, 11.)
“If the verdict is supported by substantial evidence, we are
bound to give due deference to the trier of fact and not retry the case
ourselves. . . . It is
the exclusive function of the trier of fact to assess the credibility of
witnesses and draw reasonable inferences from the evidence.” (People v. Sanchez (2003) 113 Cal.App.4th
325, 330, citing Jackson v. Virginia
(1979) 443 U.S. 307, 318-319, other citations omitted.)
Defendant’s
argument is made more difficult because he does not contend that any particular
element of any particular count was
legally insufficient. (See
[sufficiency of the evidence as to one element]; People v. Dupre (1968) 262 Cal.App.2d 56, 58 [evidence
insufficient because prosecution failed to prove the element of
knowledge].) Instead, he argues that
Allyson’s trial testimony was not “reasonable in nature, credible and of solid
value.” As such, his argument must
overcome perhaps the most stringent rule of appellate review: Even though a “witness may be discredited by
a showing of bias or interest, or self-contradiction, or other grounds of
impeachment, or by the manner of testifying, or by inherent probabilities in
the testimony,” that is not enough, for credibility is for the trier of fact to
determine, not for the appellate court.
(See 6 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Criminal Appeal, § 151, at
p. 398.) While an appellate court
can theoretically reverse a judgment when it concludes the evidence is
inherently improbable, “such a finding is so rare as to be almost
nonexistent.” (People v. Ennis (2010)
190 Cal.App.4th 721, 728.)
“ ‘ “To warrant the rejection of the statements given by a
witness who has been believed by a trial court, there must exist either a
physical impossibility that they are true, or their falsity must be apparent
without resorting to inferences or deductions.” ’ ” (Ibid.,
another point in People v. Burton (1961)
55 Cal.2d 328, 352.) Neither is
present here.
Defendant’s
argument is predicated on claimed inconsistencies in Allyson’s version of
events:
1. She testified at trial that she called
the doorman, Sam Payne, from the elevator’s emergency phone, but Payne
testified that at the time the emergency phone had to be unlocked with a key;
and
2. Payne said that Allyson told him she
got blood on her hair from defendant’s head injury when he slipped and fell on
the floor. At trial, she said the injury
might have been caused by the handle that had broken off in her hand as
defendant was grabbing her. She was
certain of that version when she sought a temporary restraining order against
defendant. Her trial testimony on the
point was generally confirmed by the reports and testimony of police offices.
These
inconsistencies – if they were inconsistencies – were for the jury to
resolve. As to defendant’s first point,
the jury may have believed Allyson and thought that Payne was wrong about the
time when locks were added to the elevator phones. Or the jury might have disbelieved Allyson
about whether defendant had smashed her cell phone – they could not reach a
verdict on the utility charges – and concluded that she used the cell phone to
make the call to Payne. Either way,
Payne said Allyson sounded panicked on the phone, reasonable testimony
considering the events that had just transpired. Whether or not Allyson used the elevator phone
had little bearing on the weight of the other testimony.
As
to how defendant got injured, the testimony from Allyson, the police, and Payne
had a single common denominator: there
was a struggle at the patio door, Allyson took hold of the handle to try to get
to the balcony, defendant grabbed her, the handle came off and as the two of
them fell backwards on to the floor, defendant cut his head either by the
handle striking it or by the force of the fall onto the floor. The precise etiology was simply not
important. Allyson never claimed the
blood was hers.
Any
inconsistency notwithstanding, as expert witness Baca explained, the evidence
in this case traced a fairly typical pattern of domestic violence. Alicia S.’s testimony provided eerily similar
details to what Allyson testified:
attack against a former girlfriend, in her apartment, straddling the
victim and using a belt. There was more
than enough evidence to convict defendant beyond a reasonable doubt.
The
judgment is affirmed.
RUBIN,
ACTING P. J.
WE CONCUR:
FLIER,
J.
GRIMES,
J.
