Filed 12/7/05 P. v. Silguero CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellants Joe Evaristo Silguero and Juan Linares were jointly tried before a jury and convicted of burglary and assault charges arising from their attack upon a friend with whom they had been drinking. They contend: (1) the trial court erred when it excluded the testimony of a woman who had been in a physical altercation with the victim earlier in the day; (2) the evidence did not support a burglary conviction; and (3) the evidence did not support a flight instruction. We affirm.

FACTS AND PROCEDURAL HISTORY

Appellants spent part of an afternoon drinking beer with Harold Erhard at a Hooters restaurant in West Covina. Erhard had been friends with appellant Linares for several years, but had not met appellant Silguero before that day. Erhard became so intoxicated that he blacked out for a period of time.

Erhard returned home at about 6:00 p.m., not remembering how he got there. Feeling ill, he went into the bathroom and began vomiting. His wife, Yazmin Ortega, came home from work and after finding him in this state went into her bedroom to watch television.

Appellants and a third man armed with a shotgun entered the apartment uninvited and unannounced. They went inside the bathroom where the third man struck Erhard several times with the shotgun and injured his face. When the man had finished, Silguero put a knife to Erhard's neck. Silguero and the third man left and Linares came into the bathroom and scuffled with Erhard for a few minutes. Erhard came out of the bathroom and found Linares still in the house talking to his wife. Linares said he would wait until the police arrived, but then left. When the police arrived photographs were taken of Erhard showing facial injuries.

According to Erhard's wife, Linares had restrained her in the bedroom when the men first arrived. She saw Silguero and the man with the gun go into the bathroom and heard noises like someone was being hit. Erhard's wife was finally able to go into the bathroom and saw Silguero grabbing Erhard's clothing and putting a knife to his neck. After Silguero and the third man left the house, she found a cell phone and called 911.

Linares was questioned by Detective Preston of the West Covina Police Department. After waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, he described the following events: He was drinking at Hooters with Silguero and Erhard when they began talking to a waitress who worked there (elsewhere identified as Alli Baruch). Baruch finished her shift and accompanied the men to another bar. The group had more drinks and they all left in Erhard's car with Erhard driving and Baruch sitting in the front passenger seat. Erhard began "coming on" to Baruch, but Linares intervened and convinced Erhard to stop at a Sav-On to buy more beer. Erhard pulled into a parking lot and stopped the car. He attempted to grab Baruch and keep her in the car while the others were getting out. When she resisted and pulled away, he got angry and drove away, leaving appellants and Baruch in the parking lot. Baruch called a friend to give them a ride and dropped appellants at Silguero's apartment. A man named Neto stopped by and drove appellants to Erhard's apartment so they could discuss what had happened in the Sav-On parking lot. None of them was carrying a weapon.

During the interview, Linares told Detective Preston that the door to Erhard's apartment was partially opened when they arrived. They went inside, where he spoke to Erhard's wife and told her about what had happened. He heard Silguero and Neto arguing with Erhard in the bathroom. He and Erhard's wife walked to the bathroom and saw Erhard lying in the tub with blood on his face. Silguero and Neto left the apartment and Linares stayed behind to talk to her. Erhard began arguing with Linares and threw a punch at him because he was angry that Linares had told his wife about Baruch. The two men began shoving each other back and forth. Linares left and walked home after discovering that Silguero and Neto had already driven away.

Linares testified at trial and told a different version of events. He said that he had been drinking with Silguero and Erhard at Hooters and went to another bar to continue drinking. Erhard was hit in the face by Baruch and got into an argument with Silguero over his conduct. Baruch drove the three men to Erhard's apartment at Erhard's invitation, where they continued drinking, until Erhard's wife came home and became upset. Linares told Erhard's wife about the incident with Baruch and Erhard tried to hit him. Erhard's wife called the police while they were struggling. Linares left because Erhard and his wife began talking about blaming Silguero for the fight. He denied that he had spoken to Detective Preston about the case and denied that he had said anything about Neto or another person being present in the apartment. Linares believed the injuries on Erhard's face might have been caused by his earlier altercation with Baruch, although he acknowledged he did not see any injuries on Erhard after she hit him.

Based on this evidence, appellants were convicted of first degree residential burglary. (Pen. Code, § 459, 460.)^[1] Silguero was additionally convicted of assault with a deadly weapon or by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)), and Linares was convicted of simple assault (§ 240). The jury acquitted appellants of assault with a firearm. (§ 245, subd. (a)(2).)

DISCUSSION

Exclusion of Alli Baruch's Testimony

Appellants contend the judgments must be reversed because the court excluded evidence about the earlier altercation between Erhard and Alli Baruch. They argue that the ruling was a violation of state evidentiary law and deprived them of their federal constitutional rights to due process and to present a defense. We conclude any error was harmless.

Before the trial commenced, the prosecutor asked the court to exclude as irrelevant any testimony that Erhard grabbed Baruch's arm and tried to keep her in his car when the group stopped at the Sav-On after drinking at the second bar. Defense counsel stated that they might wish to call Baruch as a witness to show that she rather than appellants had injured Erhard's face. The court ruled that the defense could not question Erhard about Baruch during cross-examination, but could call her as a witness to refute prosecution evidence that the injuries were caused during the charged assault. The court indicated that defense counsel could ask for a sidebar if it appeared during the trial that additional aspects of the Baruch incident were relevant to the issues.

Erhard testified during the prosecution's case in chief that he could not remember how he got his facial injuries. His wife testified that he had not been injured before the assault by appellants. Linares testified that he saw Baruch hit Erhard in the face and that he told Erhard's wife about that altercation, angering Erhard and prompting a fight. Silguero's counsel approached the bench and asked to cross-examine Linares further about Baruch, representing that Linares would testify to having offered Baruch's telephone number to Erhard's wife so she could call her and find out what had happened. The court ruled that additional testimony about Baruch would be unduly confusing under Evidence Code section 352, noting that sufficient evidence on that subject had been admitted.

A defendant has the right to offer a defense through the testimony of witnesses, subject to the application of the state's ordinary rules of evidence. (People v. Lucas (1995) 12 Cal.4th 415, 464.) The exclusion of testimony under Evidence Code section 352 is reviewed for abuse of discretion and does not implicate the federal constitution unless the evidence was so vital to the defense that due process requires its admission. (People v. Cornwell (2005) 37 Cal.4th 50, 81-82; People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.)

We reject the Attorney General's claim that appellants forfeited this issue by their failure to press for a final ruling. The court indicated at the outset of the trial that barring additional developments, testimony by or about Baruch would only be admitted to refute evidence that Erhard was injured during the fight with appellants. When Linares took the stand, the court denied the request by Silguero's counsel to delve further into the Baruch issue and stated that sufficient evidence on the subject had already been presented. Appellants were not required to further press for a ruling.

Turning to the merits, we agree that evidence about Baruch was relevant to show that Erhard's injuries were not caused by appellants and to support Linares' claim that Erhard initiated the fight because he was angry that Linares had told his wife about Baruch. But it is not reasonably probable that appellants would have obtained a more favorable result if additional evidence on the subject had been presented. (People v. Watson (1956) 46 Cal.2d 818, 836.)

The only witnesses who could have testified about what happened between Erhard and Baruch were Erhard, Baruch and appellants. Erhard testified that he was in an alcoholic blackout from the time he left Hooters until he returned home, and additional questioning by defense counsel about what happened during the intervening hours was not likely to have been productive. Silguero elected not to testify at trial and was unavailable to produce evidence on the subject. Linares did testify and gave his version about what happened with Baruch; his prior statement to Detective Preston was then introduced by the prosecution on rebuttal and provided additional details.

This leaves Baruch as the remaining potential witness on the subject. But assuming she was available to testify and assuming she would have confirmed that she hit Erhard if she had been called to the stand, this would not have added significantly to the defense theory that she was the cause of Erhard's injuries. There was no offer of proof that she would have testified to seeing injuries on Erhard after she struck him, and Linares' rendition of the facts suggests she would not have had much of an opportunity to observe such injuries when Erhard left them soon after. Linares acknowledged during cross-examination by the prosecution that he had not seen any injuries on Erhard after the earlier altercation.

Linares notes that the case was a credibility contest between himself on the one hand and Erhard and his wife on the other. He claims that additional testimony from Baruch would have supported his theory that Erhard instigated a fight because Linares had told his wife about the evening's earlier events. The prosecution's witnesses did not contradict Linares' testimony or statement to Detective Preston about what happened between Erhard and Baruch and those facts were not in dispute. The critical issue was not what actually happened with Baruch, but what Linares said to Erhard's wife. Baruch would not have been able to testify about what Linares said later or Erhard's wife's reaction.

A significant amount of evidence was presented on the Baruch issue notwithstanding the trial court's initial ruling limiting the admissibility of that evidence. The evidence that was not presented was not so vital that due process required its admission. (People v. Cornwell, supra, 37 Cal.4th at p. 82.) Reversal is not required.

Sufficiency of Evidence on the Burglary Count

A defendant commits first degree burglary when he enters an inhabited dwelling house with the specific intent to commit larceny or any felony. (§§ 459, 460.) One who enters for a felonious purpose may be guilty of burglary even if he enters with the occupant's consent. (People v. Frye (1998) 18 Cal.4th 894, 954.) Appellants contend the evidence did not support their burglary convictions because the prosecution failed to prove they entered the house with the requisite intent. We disagree.

Substantial evidence supported the jury's conclusion that appellants entered Erhard's home with the intent to commit a felony. (See People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) Viewed in the light most favorable to the judgment, the evidence showed that appellants were angry with Erhard for leaving them stranded and went to his house to assault him violently. According to both Erhard and his wife, the third man who accompanied appellants was carrying a shotgun, a vivid indication that the group intended to do more than talk to Erhard. Though a different trier of fact might have reached a different result, it is not our place to reweigh the evidence on appeal when the jury could have reasonably concluded that appellants entered Erhard's home intending to commit a felonious assault. (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)

Flight Instruction

Over defense objection, the trial court gave CALJIC No. 2.52 regarding the effect of a defendant's flight: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all the other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." We reject the claim that this instruction requires reversal.

A flight instruction is proper "'whenever evidence of the circumstances of defendant's departure from the crime scene . . . logically permits an inference that his movement was motivated by guilty knowledge.'" (People v. Lucas, supra, 12 Cal.4th at p. 470.) The jury in this case could reasonably determine that appellants left the scene to avoid detection by the police, who had been called by Erhard's wife. Moreover, any arguable error in the instruction was harmless because it is not reasonably probable the jury would have returned a different verdict in its absence. The instruction leaves the factual determination of flight and its inferences to the jury and states that flight alone is not sufficient to support a conviction. (See People v. Visciotti (1992) 2 Cal.4th 1, 61.)

The judgments are affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Bruce F. Marrs, Judge

Superior Court County of Los Angeles

______________________________

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant, Joe Evaristo Silguero.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant, Juan Linares.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code unless otherwise stated.