P. v. Burquez
Filed 4/3/13 P. v. Burquez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
TRINIDAD CRUZ BURQUEZ, JR.,
Defendant and
Appellant.
2d Crim. No.
B237506
(Super. Ct. No.
2010042529)
(Ventura
County)
A
jury found Trinidad Cruz Burquez, Jr., guilty of
conviction for violating section 245, subdivision (a) within the meaning of
sections 667, subdivisions (c)(1) and (e)(1); and 1170.12, subdivisions (a)(1)
and (c)(1), the three strikes law.
name="_ftnref1" title="">[1] We affirm.
FACTS
Burquez
and Teresa Cummings had a turbulent six-year relationship. On October
10, 2010, they were living together in the same apartment. They were drinking at the beach, when they
started to argue. Burquez hit Cummings
with a newspaper. They rode their
bicycles home, and continued the argument in their apartment. Burquez left the apartment, and rode to a
park. Cummings followed him to the park.
Oxnard
Police Officer Victor Boswell went to the park in response to a 911 call. Cummings told Boswell that she confronted
Burquez outside a park restroom. Burquez
punched Cummings in the eye with a closed fist.
Cummings also had bruises on her arm.
She said Burquez caused the bruises about a week prior to the
incident. She said she did not call the
police at that time because she was afraid of Burquez.
Cummings
recanted at trial. Cummings testified
that when she arrived at the park, she began talking to a friend, Mario
Rodriguez. Burquez overheard Rodriguez
ask Cummings if she wanted to go out with him.
Burquez and Rodriguez began to yell and push each other. Cummings stepped between the men to break up
the argument and Rodriguez hit her in the left eye. Rodriguez left the park. Burquez rode after him while Cummings called
911.
In
April 2006, Cummings and Burquez got into an argument at the beach. Burquez grabbed her, causing bruises that
covered her arm. He also gave her two
black eyes and a sprained or fractured finger.
Cummings said she injured her finger when Burquez pushed her off a
bench. He also hit her in the face with
a video game, grabbed her by the arms, and hit her head against a
"posterboard."
Burquez
pled guilty to a violation of section 273.5, subdivision (a). Cummings filed a request for dismissal
stating this was the first time Burquez assaulted her.
On
February 4, 2011, Cummings came home and asked for grocery money. Burquez pushed her twice and hit her
chest. Cummings called the police but no
charges were filed.
On
June 23, 2011, Burquez returned home late at night. Cummings asked him where he had been. Burquez became upset, called her names and
hit her on the left eye. Cummings was
bleeding. She went to tell her landlord. Cummings called the police. A police officer saw a laceration and
contusion to Cummings's left eye. No
charges were filed.
Burquez
testified on his own behalf. He denied
he hit Cummings on October 10, 2010. He
admitted, however, that they had their "tussles" in the past. He said that he and Rodriguez got into a
fight. Rodriguez hit Cummings when she
stepped between them. Burquez said he
left the scene on his bicycle to chase Rodriguez. He could not catch him so he went home and
called Cummings.
Burquez
also testified about the other acts of domestic
violence.
The
April 2006, incident occurred when he told Cummings that he wanted to end their
relationship. Cummings became upset and
tried to tackle him as he walked away.
They hit each other. The next
day, the police arrested Burquez. He pled guilty in the hope his
relationship with Cummings would improve.
The
February 2011 incident occurred when the two began to argue about groceries. Burquez tried to leave and Cummings grabbed
him. He left on his bicycle. He denied hitting Cummings that day.
The
June 2011 incident occurred when the two were arguing in their apartment. Burquez left on his bicycle. Cummings pleaded with him not to leave
her. She got on her bicycle and yelled
for him to stop. When he stopped, she
rammed into him on her bicycle at a high rate of speed. The two fell over. Burquez denied hitting Cummings that
day. He said she suffered her injuries
when she fell over on her bicycle.
DISCUSSION
I.
Burquez
contends the trial court erred in admitting evidence of other acts of domestic
violence.
Generally,
evidence of a person's prior bad acts is inadmissible to show the person's
disposition to commit such act. (Evid.
Code, § 1101, subd. (a).) Evidence
Code section 1109, subdivision (a)(1) provides an exception to the general
rule. Where the defendant in a criminal
action is accused of domestic violence, other acts of domestic violence are
admissible to show the defendant's disposition to commit such acts. (Ibid.) The admission of such evidence is, however,
subject to an exercise of the court's discretion under Evidence Code
section 352. (Id., § 1109, subd. (a)(1).)
Thus the only question here is whether the trial court abused its
discretion under Evidence Code section 352.
Evidence
Code section 352 provides that the trial court has the discretion to
exclude relevant evidence where its probative value is substantially outweighed
by the probability that its admission will necessitate an undue consumption of
time, create a substantial danger of undue prejudice, of confusing the issues
or of misleading the jury.
Burquez
argues the evidence required an undue consumption of time. He claims he had to defend himself in three
"mini-trials." But the
evidence portion of the trial takes fewer than 251 pages of reporter's
transcript. There was not a great deal
of time consumed in the entire trial.
Burquez was the only witness for the defense. He simply gave his own version of the three
alleged prior acts of violence. There
was not an undue consumption of time.
Nor
was there a substantial danger of confusing the issues. The trial court instructed the jury on the
limited purpose for which the prior acts of violence could be considered. We presume the jurors followed the
instructions. (People v. Holt (1997) 15 Cal.4th 619, 622.)
Nor
was the probative value of the evidence outweighed by a substantial danger of
undue prejudice. The evidence was highly
probative, particularly because the victim recanted her accusation. All prior acts were against the same victim
and relatively recent. Some of the
incidents may arguably be worse than the charged offense, but not so much worse
as to create a substantial danger of undue prejudice.
The
trial court did not abuse its discretion in admitting evidence of prior acts of
domestic violence.
II.
Burquez
contends the prosecutor committed misconduct during closing argument.
During
closing argument, the prosecutor stated:
"[Prosecutor]: Most importantly, why are you even allowed to
hear those 911 statements? The
[L]egislature has determined that those 911 statements, otherwise known as
'spontaneous statements,' are 'inherently trustworthy,' and they are inherently
trustworthy because the people who make them are still acting under the stress
of the event. In other words, they don't
have time to fabricate this. It's such
an immediate response from the person, there is no time for them to formulate
any kind of lie, change it in any way.
This is a gut reaction, a response -- an immediate survival response, an
instinct, if you will. And it is your
best evidence about what happened that day.
The judge made the determination that you were allowed to hear this
evidence because it is inherently trustworthy.
"[Defense
Counsel]: Your Honor, I'm going to
object. That's inappropriate argument;
move to strike.
THE
COURT: Well, none of my rulings are to
be interpreted by the jury as an indication of what I think about the evidence;
otherwise, you may proceed."
It
is misconduct for a prosecutor to misstate the law. (People
v. Mendoza (2007) 42 Cal.4th 686, 702.)
Here the prosecutor told the jury that the Legislature and the trial
judge consider the statements Cummings made during the 911 call to be
"inherently trustworthy." The
clear implication is that the Legislature and the trial judge are endorsing the
credibility of Cummings's 911 call. That
is not the law.
In
allowing a spontaneous statement to be admitted into evidence as an exception
to the hearsay rule, the Legislature is not declaring such statements to be
inherently trustworthy. It is only
stating that spontaneous statements carry a sufficient indicia of credibility
to be considered by the trier of fact.
Similarly, in allowing a spontaneous statement into evidence, the trial
judge is not vouching for its credibility.
The trial judge has no power to exclude such a statement simply because
he does not believe it.
It
is egregious for the prosecution to suggest the trial judge found Cummings's
statements to be inherently trustworthy.
The jury could believe that the trial judge, unlike the Legislature, had
Cummings's particular statements in mind when he found them to be admissible
Fortunately,
the trial court instructed the jury that its rulings did not indicate what it
thought of the evidence. The trial
court, however, gave no instruction about the Legislature.
Nevertheless,
the misconduct was harmless. The trial
court instructed the jury that its rulings did not indicate what it thought of
the evidence. It further instructed that
the jury is the sole judge of the credibility of witnesses. The jury would not believe that the
Legislature had determined the credibility of the particular recording of the
911 call. The jury heard the recording
of the 911 call and could determine the credibility for itself. Finally, the offending comment was brief and
only a small part of the prosecutor's argument.
The prosecutor's main point was that Cummings's 911 call was consistent
with what she told the police at the scene.
In both cases she identified Burquez as the person who hit her and never
mentioned Rodriguez.
The
misconduct here was not so pervasive or egregious as to implicate the federal
Constitution. (People v. Hill (1998) 17 Cal.4th 800, 819.) Thus we apply the harmless standard for
misconduct under state law. (
There is no reasonable probability Burquez would have obtained a more
favorable result in the absence of the prosecutor's misconduct. (See People
v. Bolton (1979) 23 Cal.3d 208, 214.)
III.
Burquez
contends his sentence must be reversed because there is no substantial evidence
that his 1982 conviction for violating section 245, subdivision (a), assault
with a deadly weapon, qualifies as a strike.
Burquez
points out that in order for his prior conviction to qualify as a strike, he
must have personally used a deadly or dangerous weapon or have personally
inflicted great bodily harm. He argues
that neither his admissions nor any other evidence in the record supports such
a finding. He claims he only admitted to
the fact of his prior conviction.
The
information alleges that in 1982, Burquez was convicted of violating section
245, subdivision (a) "within the meaning of Penal Code section 667(c)(1),
667(e)(1), 1170.12(a)(1), and 1170.12(c)(1)."
Burquez
executed a written waiver form in which he admitted to having suffered a prior
conviction for violating section 245, subdivision (a), "as alleged in the
information." Thus he admitted that
his prior conviction was for a qualifying offense.
Burquez's
reliance on People v. Rodriguez (1998)
17 Cal.4th 253, 261, is misplaced. There
the defendant did not admit the prior conviction allegation, but only
challenged the sufficiency of the proof submitted.
Burquez's
reliance on People v. Epperson (1985)
168 Cal.App.3d 856, 863-865, is also misplaced.
There the trial court stated the elements of a section 667, subdivision
(b) enhancement, but only asked the defendant if he admitted he suffered a
prior conviction. The defendant in
prior conviction as alleged in the information.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Kevin
G. DeNoce, Judge
Superior
Court County of Ventura
______________________________
Melcher, Melcher &
Melcher and William Paul Melcher, 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, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising
Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title=""> [1]
All statutory
references are to the Penal Code unless otherwise specified.
