P. v.
Filed 8/3/12
P. v. Colon CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
GERARDO
JOSE COLON,
Defendant and Appellant.
B230962
(Los Angeles County
Super. Ct. No. PA066879)
APPEAL
from a judgment of the Superior Court of
County, Ronald V. Skyers, Judge. Modified and affirmed.
J. Scott
Cramer, 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, Steven D. Matthews and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant Gerardo Colon
appeals from the judgment entered upon his jury conviction of
means likely to produce great bodily injury.
Defendant contends the court committed reversible error in admitting
evidence of a prior assault. We conclude
the evidence was not admissible, but the error was harmless and did not render
defendant’s trial fundamentally unfair.
Defendant argues that the sentence violates Penal Code section 654. We agree and order the sentence on count 2
(assault) stayed. We affirm the judgment
as modified.
The victim,
Larry Kephart, is a disabled Vietnam veteran,
who can walk only short distances. In
March 2010, defendant pulled into a handicapped
spot at a Wal-Mart store ahead of Kephart.
Kephart noticed that defendant’s car did not display a handicapped
placard. He parked in a handicapped spot
across from defendant, went to the back of his minivan, and started taking
pictures of defendant’s car with his iPhone.
His plan was to turn the pictures over to Wal-Mart’s security.
Defendant
jumped out of his car and rushed Kephart, grabbing at his phone. Kephart tried to put the phone in his left
shirt pocket where he usually kept it.
The pocket ripped as defendant grabbed at the phone. Kephart did not let go of the phone, and
defendant struck him several times on the left side of the head with a closed
fist. Kephart’s ear bled onto his
shirt. Kephart swung at defendant but
was not sure he made contact. Defendant
knocked Kephart to the ground and kept hitting him until Kephart let go of the
phone. Several witnesses, including a
passenger in defendant’s car, called for defendant to stop hitting
Kephart. Defendant wrested the phone
away, ran back to his car and drove off so fast that he almost hit another
car. He was arrested later the same
day. Kephart’s phone was not found.
Defendant
was charged with second degree robbery
in count 1 (Pen. Code, § 211) and assault by means of force likely to produce
great bodily injury in count 2 (id.,
§ 245, subd. (a)(1)).
At the jury
trial, the prosecution called Kephart and two eye witnesses. One of them, Debbie Macias, saw a portion of
the incident. She had an unobstructed
view, and it appeared to her that Kephart was being “bullied.” She saw defendant push Kephart, who lost his
balance and tried to move away. She also
saw defendant hit Kephart on the side of the head with a closed fist more than
once. She saw Kephart raise his arms to
protect his face. Then he went
down. Defendant crouched over Kephart,
then got up and kicked Kephart before running back to his car. At that point, Macias glimpsed a black object
in defendant’s hand.
Macias was impeached
with her testimony at the preliminary hearing, during which she did not mention
defendant kicking Kephart when the latter was on the ground. She was unsure whether she told the
responding officer that defendant kicked Kephart.
The other
eyewitness, Pamela Meyer, also claimed to have had an unobstructed view of what
she thought was a mugging. She first
noticed Kephart holding a dark object in his hand high above his head. Kephart appeared to be leaning back, shaking
his head “no,” and trying to keep the object out of defendant’s reach. Meyer thought the object was a wallet. Defendant was pushing and hitting Kephart,
trying to reach the object. Meyer saw
defendant hit Kephart with his fist around the face and neck. She then looked away to see if anyone was
coming to help, and when she looked back, Kephart was on the ground. He was holding an object over his head, and
defendant was pulling on it. She saw
defendant kick at Kephart and eventually pull the object away. Defendant then ran to his car and drove
off. Macias and Meyer confirmed that
Kephart’s left ear was bleeding.
The 911
calls made by Kephart and Meyer were played to the jury. In her call, Meyer reported that a man’s
wallet was taken and the man was knocked down.
Kephart reported that he was taking photos of a car that parked in a
handicapped spot when the driver attacked him and took his iPhone. The responding officer did not testify, but
portions of the police report recounting his interviews with Macias, Meyer, and
another eye witness were introduced into evidence on the parties’
stipulation. According to the report,
both Macias and Meyer claimed to have seen defendant continue to punch Kephart
after knocking him to the ground.
Defendant’s
mother testified for the defense that she, her husband, and defendant’s
girlfriend rode in defendant’s car that day.
Her husband had a handicapped placard, but it was not displayed. According to her, when defendant got out of
the car to see what Kephart was doing, Kephart insulted him and tried to hit
him. She then saw defendant hit Kephart,
but claimed not to have witnessed the rest of the encounter. She testified that defendant had nothing in
his hand when he returned to the car.
The
prosecution argued that, since defendant’s mother testified that Kephart was
the initial aggressor, it was entitled to present rebuttal evidence under
Evidence Code section 1103. The court
agreed with the prosecution over defendant’s objection. The rebuttal evidence concerned a 2007
incident, during which defendant struck, knocked down, and kicked a woman in a
parking lot for tapping his car with her car door. The woman’s son intervened and was also hit
and kicked by defendant. Defendant then
hit and kicked the woman some more. In
backing up his car to leave the scene of the incident, defendant struck and
injured his own passenger. In
surrebuttal, defendant’s passenger testified that the 2007 incident was a
mutual argument that resulted in a fight, during which the woman kicked and
tried to key defendant’s car, spit in the face of defendant’s passenger and
slapped him when he tried to stop the fight, and her son wielded a bumper at
defendant. When she was recalled, the
woman denied hitting or kicking defendant, his passenger, or his car.
The jury
found defendant guilty as charged. He
was sentenced to two years in prison on count 2 and to a concurrent two-year
term on count 1. This timely appeal
followed.
I
The trial court allowed evidence of the 2007 incident
as rebuttal evidence under Evidence Code section 1103, subdivision (b).
propensity evidence under section 1101 that had the potential of confusing the
jury and should have been excluded under section 352 as more prejudicial than
probative. Defendant argues the
erroneous admission of this evidence was so prejudicial that it rendered his
trial fundamentally unfair.
A trial court’s rulings on relevance
and admission or exclusion of evidence are reviewed for abuse of
discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Character evidence is generally
inadmissible to prove a person acted in conformity with it on a given
occasion. (§ 1101, subd. (a).) An exception to this rule allows a criminal
defendant to offer evidence of a victim’s character trait to show the victim
acted in conformity with that trait. (§
1103, subd. (a)(1).) If the defendant
offers evidence showing the victim has a violent character, then the
prosecution may offer evidence of the defendant’s violent character to show the
defendant acted in conformity with it.
(§ 1103, subd. (b).)
The victim’s conduct during the
incident on which the charge is based does not fall under section 1103. (People
v. Myers (2007) 148 Cal.App.4th 546, 552.)
“Wigmore, on whose treatise Evidence Code section 1103 is based (
10 Cal.App.4th 1167, 1173–1174), notes the relevance of character evidence
is premised on a continuity of character over time: ‘“Character at an earlier or later time than
that of the deed in question is relevant only on the assumption that it was
substantially unchanged in the meantime, i.e. the offer is really of character
at one period to prove character at another. . . .”’ (People
v. Shoemaker (1982) 135 Cal.App.3d 442, 448, quoting Wigmore [italics
omitted].) If evidence of a victim’s
conduct at the time of the charged offense constitutes character evidence under
Evidence Code section 1103, then every criminal defendant claiming
evidence of his own violent character.
Evidence Code section 1103 cannot be read so broadly.” (Id.
at pp. 552-553.)
The
testimony that Kephart swung at defendant during the 2010 assault for which
defendant was on trial was not evidence of Kephart’s violent character under
section 1103, subdivision (a).
Subdivision (b) was, thus, not triggered, and the 2007 incident was not
admissible to show defendant’s violent character under section 1103.
The People argue that the evidence
was nevertheless admissible under section 1101, subdivision (b) to prove
intent. They rely on
380 (Ewoldt), superseded by statute
on other grounds, as stated by People v.
Britt (2002) 104 Cal.App.4th 500, 505.
The Ewoldt court
reasoned: “The least degree of
similarity (between the uncharged act and the charged offense) is required in
order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . .
tends (increasingly with each instance) to negative accident or inadvertence or
self-defense or good faith or other innocent mental state, and tends to
establish (provisionally, at least, though not certainly) the presence of the
normal, i.e., criminal, intent accompanying such an act . . . .’ [Citation.].”
(Id. at p. 402.)
At trial, the prosecutor did not seek
to introduce that 2007 incident under section 1101, subdivision (b), and no
limiting instruction was requested or given to the jury under section 355. (See People
v. Grant (2003) 113 Cal.App.4th 579, 591 [when evidence of uncharged
offense is admitted under section 1101, trial court must give limiting
instruction upon request].) The two
incidents were not sufficiently similar because the 2007 incident did not
include elements of robbery, which were present in this case. Nor did defendant seek to establish that he
acted in self-defense or ask that the jury be instructed on this defense.
The evidence also was subject to
exclusion under section 352, which gives “the court discretion to ‘exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.’ [Citation.]” (People
v. Brown (2000) 77 Cal.App.4th 1324, 1337.)
The trial court ruled that the 2007 incident was proper rebuttal
evidence showing defendant’s “propensity for the [sic] aggression” under section 1103, and did not expressly address
whether it should be excluded under section 352. The court allowed extensive testimony about
the 2007 incident that exceeded the question of who was the aggressor in that
case. After the surrebuttal, the court
acknowledged that “we have left completely the original case,” and “all of it
is really not that relevant because the jury has to decide the present case. .
. . I hope they haven’t lost track of it
or haven’t forgotten, but that’s what it is.”
The evidence about the 2007 incident was not proper rebuttal evidence
under section 1103, and most of it should have been excluded under section 352
as irrelevant, time consuming, and potentially confusing.
A defendant may argue on appeal that
overruling his section 352 objection resulted in a violation of due
process. (People v. Partida (2005) 37 Cal.4th 428, 438–439.) Absent such a violation, defendant must prove
that it is reasonably probable the verdict would have been more favorable to
him. (Id. at p. 439, citing People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).) On the other hand, a due process violation
requires the State to prove beyond a reasonable doubt that the error did not
contribute to the verdict. (
Cal.App.4th 214, 229 (Albarran),
citing Chapman v. California (1967)
386 U.S. 18, 24 (Chapman).)
“‘Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due
process. Even then, the evidence must
“be of such quality as necessarily prevents a fair trial.” [Citation.]’
[Citation.]” (
inflammatory].) The potential for undue
prejudice is lower when evidence of the uncharged acts is “no stronger and no
more inflammatory” than evidence of the charged crimes. (People
v. Eubanks (2011) 53 Cal.4th 110, 144, quoting Ewoldt, supra, 7 Cal.4th
at p. 405.)
The parties disagree whether the 2007
incident, which involved defendant’s fighting a woman and her underage son and
inadvertently injuring his own passenger, was more inflammatory than
defendant’s 2010 assault on a disabled Vietnam veteran. In closing argument, the prosecutor used the
2007 incident to argue that Kephart could not have been the initial aggressor,
and she emphasized the testimony of the victim in that incident that defendant
knocked her down with a single punch.
Defense counsel used the 2007 incident to argue that in both cases there
was a confrontation and a fight. The
inference the jury was invited to draw from the evidence was that defendant
tends to resort to violence in public places on the slightest provocation. While this was impermissible character
evidence, the 2007 incident was not stronger or more inflammatory than the
incident for which defendant was on trial.
The prosecutor’s case against defendant
was so strong that admission of the 2007 incident was harmless under either the
Watson or Chapman standard of review.
The evidence was that defendant hit Kephart repeatedly despite
bystanders honking their car horns and calling for him to stop; the only
inconsistency in the eye witnesses’ testimony had to do with whether defendant
kicked or punched Kephart after the latter fell to the ground. Whether or not Kephart insulted defendant or
swung at him initially was irrelevant because it was undisputed that defendant
struck Kephart with such force as to knock him to the ground and make his ear
bleed at a time when Kephart was not actively fighting back. Defense counsel did not argue that this
response was justified as self-defense.
Instead, he tried to characterize it as a simple battery as opposed to
an assault by means likely to cause bodily injury. But a blow to the head with a closed fist
that knocks a person to the ground and makes his ear bleed is sufficient to
convict defendant of assault by means likely to cause bodily injury. (See People
v. Aguilar (1997) 16 Cal.4th 1023, 1028 [“the use of hands or fists alone
may support a conviction of assault ‘by means of force likely to produce great
bodily injury’”]; In re Nirran W.
(1989) 207 Cal.App.3d 1157, 1162 [single blow to the face sufficient to knock
the victim to the ground was force likely to produce great bodily
injury].)
As to the robbery, defense counsel’s
theory was that the iPhone flew off during the scuffle and was lost. Kephart’s 911 call and trial testimony were
credible evidence that defendant took the iPhone. Meyer’s 911 call and trial testimony were
additional evidence that defendant took an object away from Kephart. Macias corroborated their versions of the
incident when she testified that she saw something in defendant’s hand when
defendant ran back to his car. In
contrast, defendant’s mother testified only that defendant had nothing in his
hand when he got back into the car. Even
were this testimony credited, it did not contradict the evidence that defendant
took away Kephart’s iPhone. What may
have happened to the phone before defendant entered his car was beside the
point since he had already taken it from Kephart’s person by force. Defense counsel’s theory that the iPhone was
lost rather than feloniously taken was entirely speculative.
We are satisfied that the trial
court’s error in admitting testimony about the 2007 incident did not violate
defendant’s right to due process and was harmless under any standard in light
of the prosecution’s otherwise solid case against defendant.
II
Defendant
argues that the sentence on the assault conviction should be stayed under Penal
Code section 654.
title="">[2] We agree.
Section 654
requires that, when an act “is punishable in different ways by different
provision of law,” a defendant “shall be punished under the provision that
provides for the longest potential term of imprisonment.” It prohibits separate punishment for crimes
arising from a single, indivisible course of conduct. (People
v. Latimer (1993) 5 Cal.4th 1203, 1208.)
If the crimes were incidental to a single objective, a defendant may be
punished only once. (
The trial court’s determination of defendant’s objectives may be
reversed on appeal only if it is unsupported by the evidence. (People
v. Evers (1992) 10 Cal.App.4th 588, 604.)
Here, the trial court selected the
assault count as the base term and the robbery count as the subordinate
term. It imposed a two-year sentence on
each count, making the sentence for robbery (count 1) concurrent with the
sentence for assault (count 2).
name="_ftnref3" title="">[3] Defense counsel argued that, if the court
found the two counts arose from an indivisible course of conduct, it could not
sentence defendant on the second count.
Counsel misquoted People v. Deloza
(1998) 18 Cal.4th 585, where the court explained that where two convictions
arise from an indivisible course of conduct, section 654 “requires the sentence
for one conviction to be imposed, and the other imposed and then stayed.” (Id.
at p. 592.)
In this context, the court reasoned
as follows: “I’m holding that [section]
654 does apply, so that it’s—it might not be one indivisible course of conduct,
but they’re so related and so close in time that the court is going to sentence
the count 1 concurrent with count 2 but not—not that I’m not going to sentence
on count 1. . . . And this is not only because of [section] 654 but because of
the closeness in relationship there. Two
crimes that could be distinct, because it is claimed that the cell phone was
taken from the victim and that he was beaten also. So it’s—it’s somewhat two separate courses of
conduct, but they were so very related that the court uses its discretion to
sentence concurrently, and so it’s two years.
Because that two years will be stayed because of the concurrent
sentence.”
While the court correctly stated that
it had to impose sentences on both counts, it is unclear whether it found that
defendant harbored more than one objective to preclude the application of
section 654. The evidence does not
support such a finding.
A robber cannot be punished for both
robbery and assault if the assault is simply a means of carrying out the
robbery. (People v. Flowers (1982) 132 Cal.App.3d 584, 589.) Gratuitous violence evidences an independent
objective as when a robber assaults a neutralized and unresisting victim “to
facilitate a safe escape, evade prosecution, or for no reason at all . . .
.” (People
v. Nguyen (1988) 204 Cal.App.3d 181, 191.)
The People contend that defendant
initially intended only to frighten Kephart from taking pictures and make him
retreat. Once Kephart retreated to his
car, defendant formed a separate intent to take the iPhone. After taking the phone, defendant
gratuitously beat Kephart. This is not a
correct statement of the evidence.
Kephart testified he took pictures
“standing at the rear right passenger side” of his minivan, and defendant
“jumped out of his car and came at me rather quickly, and started grabbing at
my phone.” Kephart did not remember specifically
what defendant said but thought it was something like, “Give me that
phone.” Kephart’s testimony does not
support a finding that defendant’s intent initially was simply to discourage
him from taking pictures. Rather, it
supports a finding that from the very beginning defendant intended to deprive
Kephart of his iPhone.
Kephart
consistently testified that defendant did not let up until he got the
phone. Defendant seized and pulled away
on the phone while Kephart tried to hold on to it. Kephart tried to put the phone in his shirt
pocket, and the pocket ripped when defendant pulled on it. When Kephart “wouldn’t let go of the phone,”
defendant started hitting him. Kephart
also said that defendant “kept punching me until I let go of the phone.” “He finally wrestled the phone away from me,
and then he ran to his car and got in.”
Meyer
similarly testified that she first noticed Kephart holding a dark object in his
hand high above his head. Kephart
appeared to be trying to keep the object out of defendant’s reach. Defendant was pushing and hitting Kephart,
trying to reach the object. She then saw
Kephart on the ground, still holding the object over his head, and defendant
pulling on it. She saw defendant kick at
Kephart, pull the object away, and run to his car.
Macias
testified that she saw defendant kick Kephart before running back to his
car. She also saw an object in
defendant’s hand, but her testimony does not make clear whether she saw the
object before or after defendant kicked Kephart.
The evidence does not support a
finding that defendant engaged in gratuitous violence unrelated to his
objective of taking the iPhone. While
Kephart may not have actively fought back, he resisted defendant’s actions by
holding on to the phone. Thus, it cannot
be said that defendant gratuitously beat a neutralized and unresisting
victim.
Second
degree robbery is punishable by a term of two, three or five years. (§ 213,
subd. (a)(2).) Assault with force likely
to produce great bodily injury is punishable by a term of two, three, or four
years. (§ 245, subd. (a)(1).) Since the robbery provision contains a longer
potential term of imprisonment, section 654 requires that the two-year term
imposed on count 1 (robbery) be the base term, and that the two-year term
imposed on count 2 (assault) be stayed.
We modify the judgment to make the
two-year term imposed on the robbery conviction the base term and to stay
execution of the two-year term imposed on the assault conviction. We direct the trial court to forward a
corrected abstract of judgment to the Department
of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
EPSTEIN,
P. J.
We concur:
WILLHITE,
J. MANELLA,
J.
are to the Evidence Code.
are to the Penal Code.
