P. v. Trevino
A jury found appellant guilty of assault by means of force likely to produce great bodily injury in violation of Penal Code[1] section 245, subdivision (a)(1) (count 1) and battery in violation of section 243 – a lesser included offense to that charged in count 2 of the information. On count 1, the court imposed five years in state prison but suspended the execution of that sentence and granted appellant five years of probation with conditions that included he serve 300 days in county jail. The court imposed a concurrent term of 180 days in county jail on count 2.
Appellant contends the trial court erred by excluding photographs the victim in count 1 presented to a detective depicting his injuries. Because the photographs were of injuries from a separate occasion in which the victim had been previously assaulted by someone other than appellant, he maintains the victim's submission of the pictures to the detective suggested the victim attempted to improperly bolster/fabricate evidence against appellant. He also argues the trial court erred by excluding evidence that, when the victim spoke to the police about the prior assault, the victim was willing to provide the name of his assailant even though the victim did not see the person who assaulted him.
With respect to count 2, appellant argues the trial court improperly permitted the prosecutor to cross-examine a defense witness on the subject of appellant's training as a boxer because it was: (a) beyond the scope of direct examination; and (b) inadmissible pursuant to Evidence Code sections 1101, subdivision (a) and 352. Respondent contends the trial court improperly awarded excessive jail conduct credit.
The claims made by both parties are rejected and the judgment is affirmed. Although the trial court applied the wrong statute when ruling on the evidence related to count 1, any error by the court was harmless given (a) the tenuous relevance the evidence had to the defense that appellant never struck the victim, and (b) the testimony from another eyewitness squarely implicating appellant. In addition, evidence that appellant trained as a boxer was properly admitted because it bore on the issue of his ability to inflict great bodily injury. Respondent's position regarding the limitation on conduct credits is not persuasive because the limitation referenced by respondent is not applicable where, as here, a defendant is granted probation.
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