P. v. Sanchez

Filed 2/5/07  P. v. Sanchez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

            APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara  R. Johnson, Judge.  Affirmed.

            Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

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            Victor Sanchez appeals from the judgment entered after a jury convicted him on multiple counts of inflicting corporal injury, aggravated assault, kidnapping and making criminal threats arising from three incidents of domestic abuse against Milagro Ferman.  Sanchez contends the trial court committed prejudicial error by limiting Ferman's cross-examination and by allowing the People to amend the information during trial to add the charge of assault by means of force likely to produce great bodily injury.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            1.  The Charges

            Sanchez was charged by amended information with one count of making criminal threats (Pen. Code, § 422)[1] (count 1); three counts of inflicting corporal injury on the mother of his children (§ 273.5, subd. (a)) (counts 2, 3 and 4); and one count of kidnapping (§ 207, subd. (a)) (count 5).  The amended information specially alleged with respect to the criminal threats charge in count 1 and the corporal injury charge in count 2 a firearm enhancement under section 12022.5, subdivision (a), and with respect to the kidnapping charge in count 5 a firearm enhancement under section 12022.53, subdivision (b).  During trial the information was further amended to add a sixth count for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). 

            2.  Summary of the Evidence Presented at Trial

                        a.  The People's evidence

            On the afternoon of October 5, 2003 Ferman went to the Norwalk Sheriff's station and reported to Los Angeles Police Officer Kristy Chavarria that she had been injured early that morning by Sanchez, with whom she had been involved in a sexual relationship since 2001 and had one child.  Ferman repeated her story to Detective Marco Morales in an interview five days later on October 10, 2003.  According to Ferman's reports to the officers, about 2:00 a.m. on October 5, 2003 Sanchez arrived unexpectedly at the bar where Ferman worked, found her outside after she had finished her shift and forced her into his car.  Once inside the car, Sanchez accused Ferman of being unfaithful to him, grabbed her by the hair and slammed her head against the dashboard and the window.  Sanchez also punched her in the face and upper torso.  He pointed a gun at Ferman and said, if she attempted to exit the car, he would shoot her.  Sanchez then took Ferman to a motel room.  After he fell asleep, Ferman left the motel room and obtained a ride home from two men she found outside.  When Ferman reported the incident, Officer Chavarria observed bruising on Ferman's left eye, left upper arm and left wrist, scratches on her right ear and forehead, cuts on her lower lip and redness to her chest.  Detective Morales noticed some of the same injuries when he interviewed Ferman two days later.  The case ultimately was not pursued for lack of victim cooperation because Ferman declined to identify a suspect and failed to appear for an interview scheduled with the district attorney's office and Morales.  The October 5, 2003 incident formed the basis for the corporal injury charge in count 4 and the kidnapping and related firearm enhancement charge in count 5.

            On the afternoon of November 8, 2004 Ferman went to the police and reported another incident.  According to Los Angeles Police Officer Margarita Sanders, Ferman said Sanchez had come to her house at 2:30 a.m. that morning and pried open her door with a screwdriver.  Once in the house Sanchez yelled at Ferman because she had broken off their relationship the previous day.  Ferman tried to call the police emergency number, but Sanchez pulled the telephone jack out of the wall.  He then grabbed her by her hair, threw her on the bed, held her down and punched her approximately four times on the head, once over the left eye and twice on the mouth.  Sanchez left the house when Ferman fell asleep.  Two days later, on November 10, 2004, Ferman was interviewed by Detective Jose Barragan.  She indicated she now had two children with Sanchez and said he had pulled her hair in the past.  Ferman stated she was moving out of state, did not wish to pursue any charges against Sanchez and declined to provide any additional information about the November 8, 2004 incident.  Based on Ferman's unavailability, the district attorney's office declined to pursue the matter.  The November 8, 2004 incident formed the basis for the corporal injury charge in count 3.

            Four months later, on the morning of March 12, 2005, police responded to a call from one of Ferman's neighbors.  Officer Ramon Barajas spoke with Ferman at her neighbor's apartment; and Ferman told him Sanchez had beaten her earlier that morning and was in her apartment.  Barajas observed Ferman had multiple bruises, swelling on her left eye and redness on her face.  Once in Ferman's apartment Barajas saw Sanchez lying on the bed with his back toward the door and the grip of a handgun sticking out of his right, rear pocket.  Sanchez was taken into custody.  In addition to the gun, ammunition was recovered from his person. 

            Ferman was taken to the hospital, where she was interviewed by Officer Barajas.  She reported Sanchez had entered her house about 3:00 a.m. that morning while she was sleeping, grabbed her by the hair, accused her of infidelity and hit her in the head.  Sanchez placed a gun against her left temple and threatened to kill her if she called the police.  He continued to hit her and then grabbed the telephone and began punching her in the face with it.  Ferman went to her neighbor's house once Sanchez fell asleep.  Two days later Ferman spoke with Detective Ralph Lagunas and told him Sanchez had injured her on March 12, 2005, as well as on October 5, 2003 and November 8, 2004.  The March 12, 2005 incident formed the basis for the charge of making criminal threats and related firearm enhancement in count 1, the corporal injury and related firearm enhancement charge in count 2 and the aggravated assault charge in count 6.

            At trial Ferman essentially denied reporting to the officers that Sanchez had beaten her on three occasions, although she did acknowledge he had hit her and prevented her from getting out of his car on October 5, 2003.  She testified she did not recall how she was injured on November 8, 2004 and said she was injured on March 12, 2005 because she had fallen in the shower.

                        b.  The defense's evidence

            Sanchez testified on his own behalf, admitting his relationship with Ferman but denying he had abused her in any way.  He also denied being the father of any of Ferman's children, explaining Ferman had not filed paternity tests indicating he was the father and he had not been named on the birth certificate of either of the two children Ferman claimed were his.  Sanchez explained he had been in a 14-year relationship with Lizbeth Perez, although the two were not married, and had three children with her.  He admitted he had been unfaithful to Perez with five women, including Ferman.  In support of Sanchez's defense, Perez testified Sanchez had never abused her during their 14-year relationship.  In addition, one of Sanchez's sisters and her husband testified they had never known Sanchez to be abusive or violent.

            3.  The Jury's Verdict and Sentencing

            The jury convicted Sanchez of the criminal threats charge in count 1; the corporal injury charges in counts 2, 3 and 4; the kidnapping charge in count 5; and the aggravated assault charge in count 6.  It found true the special allegations regarding firearm use under section 12022.5, subdivision (a), with respect to the criminal threats charge in count 1 and the corporal injury charge in count 2 but found not true the special allegation regarding firearm use under section 12022.53, subdivision (b), with respect to the kidnapping charge in count 5.

            The trial court sentenced Sanchez to an aggregate state prison term of six years, consisting of the middle term of three years for the corporal injury offense charged in count 2, plus the low term of three years for the section 12022.5, subdivision (a), enhancement; a concurrent term of two years (the middle term) for the criminal threats offense charged in count 1, plus the low term of three years for the section 12022.5, subdivision (a), enhancement; and concurrent terms of three years (the middle term) for each of the corporal injury offenses charged in counts 3 and 4.  Sentences on count 5 for kidnapping and count 6 for aggravated assault were stayed pursuant to section 654.

CONTENTIONS

            Sanchez contends the trial court committed prejudicial error by preventing Ferman from testifying whether she had obtained paternity tests to confirm Sanchez was the father of two of her children and whether he was identified as the father on either child's birth certificate.  He also contends the trial court abused its discretion by allowing the People to amend the information during trial to add count 6 for assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1), in connection with the March 12, 2005 incident.

DISCUSSION

1.  Sanchez Was Not Prejudiced by the Trial Court's Limitation of Ferman's Cross-examination

            During Ferman's cross-examination defense counsel asked her whether she had obtained a paternity test determining that Sanchez was the father of two of her children and whether Sanchez was listed as the father on either child's birth certificate.[2]  The trial court sustained the People's objections to both questions on relevance grounds.  On appeal Sanchez contends Ferman's answers to the questions were relevant to his defense he was not the father of any of Ferman's children, an essential element of the charges against him under section 273.5, subdivision (a),[3] as well as to Ferman's credibility, and argues the trial court's limitation of Ferman's cross-examination constituted prejudicial error.

            Because the primary theory of the People's case under section 273.5, subdivision (a), was that Sanchez was the father of two of Ferman's children, which Sanchez denied, we find it difficult to understand why the trial court concluded questions regarding Sanchez's paternity did not seek to elicit relevant evidence.  (See Evid. Code, § 210 [â€