P. v. Munoz

Filed 12/8/09 P. v. Munoz CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald H. Rose, Judge. Affirmed.

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Elvis Muoz appeals from the judgment entered following a jury trial which resulted in his conviction of assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)).[1] The trial court sentenced Muoz to three years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The Peoples case.

Miguel Lemus, Muoz and Marlon Gonzales all live on a small block at 43rd Street in Los Angeles. Lemus had known Muoz for approximately eight years.

At approximately 2:20 a.m. on October 11, 2008, Lemus and Gonzalez had just returned from a wedding party and were having a conversation on Gonzalezs front porch. As the two men were talking, Muoz approached and asked Lemus if he could borrow $5. Lemus said he could not give Muoz $5 because he did not have it. Lemus, Gonzalez and Muoz then moved away from the house, out to Gonzalezs front gate.

While Lemus and Gonzalez continued their conversation, Muoz, who appeared to be intoxicated, asked Gonzalez for $5. Gonzalez, who was just finishing a conversation on his cell phone, told Muoz that he did not have $5 and that Muoz should just go home. Gonzalez then gave Muoz a push with one of his hands. Muoz interpreted Gonzalezs remark as an insult and he pushed Gonzalez back. Gonzalez then became angry. His posture and the tone of his voice changed. He began to curse in a loud voice and he pushed Muoz again. At that moment, Gonzalezs cell phone began to ring. Gonzalez answered the phone and, as he was talking, Muoz punched Gonzalez in the face. As a result of the blow, Gonzalez [fell] straight down. While cursing at him, Muoz kicked Gonzalez in the face. While Gonzalez was down, Lemus saw Muoz hit Gonzalez with his hands and punch Gonzalez with his fists.

Lemus attempted to intervene and told Muoz to stop hitting Gonzalez. However Muoz replied by cursing at Lemus. When Muoz told Lemus that he was gonna fuck [him] up too, Lemus became frightened and he ran to his house to get his brother.

When Lemus returned to the scene with his brother, Omar Lemus, they found Gonzalez unconscious, lying on the ground. Muoz was no longer there. Lemus, Omar Lemus and a third man, Carlos Placencia, carried Gonzalez to his home where, after a few moments, he regained consciousness. However, when Gonzalez could not seem to remember what had happened, he began choking and coughing up blood and he was having difficulty breathing, someone called an ambulance. Paramedics arrived a short time later and took Gonzalez to the hospital. Throughout the altercation, Lemus did not see Muoz take anything from Gonzalez.

Approximately 30 minutes after the ambulance had come to take Gonzalez to the hospital, police officers arrived. The officers had Lemus identify Muoz as Muoz sat in the patrol car.

Gonzalez testified that he had known Muoz for approximately 10 years. The two men live on the same block, diagonally across the street from one another. At approximately 2:20 a.m. on October 11, 2008, Gonzalez was at home. He had gone to a wedding earlier that evening and was hang[ing] out with some friends, including Lemus, on the front porch of his house. At approximately 2:20, Lemus was preparing to go home and he and Gonzalez walked outside to Gonzalezs front gate. At that point, Muoz walked by and asked Lemus if he had any money. After Lemus told Muoz that he did not, Muoz asked Gonzalez. Gonzalez told Muoz that he was not going to give him any money and that he should go home. Muoz did not want to go home and, after Gonzalez told him several times that he should go, Muoz became angry and said, Who the fuck do you think you are, do you think youre my dad[?] It was then that Muoz got aggressive. Gonzalez believed that Muoz was under the influence of alcohol and wanted $5 to buy more beer. It was Gonzalezs opinion that, if Muoz had not been under the influence of alcohol, he would not have become so aggressive. Instead, when Gonzalez told Muoz to go home, Muoz pushed Gonzalez. Gonzalez, who felt the need to defend himself, pushed Muoz back. Lemus then stepped in and took Muoz to the side for a moment. At that time Gonzalez believed the incident was over; that Lemus would calm down Muoz and that he would go home. Gonzalezs cell phone rang and he took the call. As he was talking on the phone, he suddenly felt a blow to the left side of his head. He fell to the ground and felt someone kick him in the side of his face until he blacked out. Gonzalez was taken to the hospital by paramedics where he was treated for injuries to his face and head as well as a sprained ankle. He was released from the hospital after three days, but suffered from headaches for several weeks after the incident. The bruising on Gonzalezs face lasted for approximately three weeks.

Carlos Placencia, who lives next door to Gonzalez, arrived home from work at approximately 2:20 a.m. on October 11, 2008. As he parked his car in his driveway, he saw several guys standing outside Gonzalezs house. Placencia went inside his house and was watching television when he heard a commotion outside. It sounded as though people were arguing and Placencia went out to investigate. As Placencia walked out to his front gate, he saw Muoz hitting Gonzalez. Plancencia saw Muoz hit Gonzalez in the face and head at least four times, then knock him to the ground. While Gonzalez was on the ground, Muoz continued to hit and kick him. Gonzalez did not move and it was clear to Placencia that he was unconscious. Placencia went inside his house to retrieve his cell phone to call the police. When he came back outside, he saw Muoz searching for things in Gonzalezs pockets. As Muoz was walking toward the street corner, he appeared to be holding a cellular telephone.

Los Angeles Police Officers Ruben Rosas and Ruvalcaba responded to a call directing them to 43rd Place. They had been given a description of Muoz and, as they neared 43rd Place, they saw Muoz walking down the street. When they took Muoz into custody, Rosas recovered from Muozs right front pants pocket a black L.G. Dare cell phone. Muoz commented, Thats Marlons, I picked it up off the ground. At a later time, Rosas took the phone to the County U.S.C. Medical Center where Gonzalez identified it as his.

b. Defense evidence.

Elvis Muoz, testified that he had known Gonzalez for approximately 13 years and considered him to be a good friend and neighbor. Gonzalez had been to Muozs house and they had frequently socialized.

On the night of October 10, Muoz had gone clubbing with a friend. He had consumed nine or ten beers and four drinks called audios mother fuckers. Since he was already intoxicated, Muoz wished to keep drinking. However, when he returned home at approximately 1:30 a.m. on October 11, he had only $2.50 left. Muoz woke up his brother, who gave him $20. Muoz then left the house and, as he started to walk to the liquor store, he ran into Gonzalez and Lemus. Muoz testified: I bumped into Marlon and Miguel outside. We just started, you know, chitchatting away, you know, just laughing it up and just next, you know, we just started arguing. Muoz did not remember asking Gonzalez for money but he did remember Gonzalez telling him to get the fuck out of here, then giving Muoz a push. When Gonzalez told Muoz to leave, it angered Muoz. He did not like the way Gonzalez had spoken to him, then pushed him. When Gonzalez then received a call on his cell phone, Muoz waited for him to finish. However, while he was still on the phone, Gonzalez told Muoz, Didnt I tell you to get the fuck out of here[?] By this time, Gonzalez was right in front of Muoz and Muoz reacted. He socked Gonzalez twice, once to the left eye and once to the right cheek.

Gonzalez fell to the ground and Muoz kicked him in the right side of his head, knocking him out. Muoz did not intend to knock out Gonzalez, it was just like a reaction cause [he] thought [Gonzalez] was gonna swing at [him]. After leaning over and shaking Gonzalez, who would not wake up, Muoz simply walked away. He testified that because [he] was mad at the moment, [he] was heated, [he] just walked away. [He] didnt even go to the liquor store. Muoz did not take anything from Gonzalez. He walked to a friends house a couple of blocks away and, there, drank more beer.

After a few minutes, Muoz began to feel badly that he had knocked out Gonzalez and left him on the sidewalk and he decided to return to Gonzalezs house to see what was happening. When he arrived at the house, Gonzalez was no longer on the sidewalk. However, in a grassy area nearby, Muoz found Gonzalezs cell phone. He went to the door of the house, but no one responded to his knock. Muoz then put the cell phone in his pocket and began to walk home. As he was coming out of the gate in front of Gonzalezs house, police officers arrived and took him into custody.

2. Procedural history.

Following a preliminary hearing, on November 10, 2008, Muoz was charged by information with one count of second degree robbery ( 211) and one count of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)).

Trial was by jury. However, before any testimony was given, Muozs mother approached Lemus and effectively warned Lemus that he should watch what he said while testifying. The district attorney, who had overheard the conversation, reported the incident to the trial court and, during a break in the proceedings, the trial court addressed Muozs mother through an interpreter and stated: Ms. [MunÌ