P. v. Arroyo
Filed 7/19/13 P. v. Arroyo CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RUBEN ALEX ARROYO,
Defendant and Appellant.
D062365
(Super. Ct.
No. SCS239068)
APPEAL from
a judgment of the Superior Court
of
County, Stephanie Sontag, Judge. Affirmed as modified with directions.
Theresa
Osterman Stevenson, by appointment of the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie
L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty
III, Deputy Attorneys General, for Plaintiff and Respondent.
Ruben
Arroyo appeals from a judgment convicting him of
other offenses. The key dispute at
trial was whether defendant was holding a gun (rather than some other item)
when he encountered the victim. On
appeal, defendant argues the trial court erred by permitting the prosecution to
display or admit into evidence (1) photographs of guns, (2) hearsay testimony
that the victim told third parties that defendant had a gun, (3) threats made
by defendant's wife to the victim, and (4) gang expert testimony. He also contends the court erred by requiring
a defense witness to appear in prison clothes.
Further, he asserts there is insufficient evidence to support the jury's
finding that he committed an act likely to result in the application of force. Finally, he argues the prosecutor made improper
statements during closing arguments.
We reject
these contentions, except for the failure to have a
rather than prison, clothing. We
conclude this error was harmless.
The
Attorney General concedes, and we agree, the trial court should have stricken
defendant's conviction of the lesser included offense of assault with a
firearm. We modify the judgment to
strike this conviction.
FACTUAL
AND PROCEDURAL BACKGROUND
On the night
of March 31, 2010, Martin
Enciso was driving on Park Way
in Chula Vista where he intended to
stop at the home of his friend, Brian Philips.
Defendant drove past Enciso going the opposite direction. Defendant was driving "real slow"
and was staring at Enciso in a "kind of aggressive" manner. Enciso did not know defendant, but he stared
back at him. When Enciso made a U-turn
to park in front of Philips's house, defendant also made a U-turn and drove to
Enciso's car. Defendant stopped his car
(a Mercedes) at an angle in front of Enciso's car, so that the two cars were
close together and illuminated by their headlights.
Defendant
got out of his car, pointed a gun, and walked over to Enciso's car.
could not understand him because Enciso's car window was closed and he had loud
music playing. With the gun pointed at
the car door, defendant grabbed towards Enciso's car door handle as if he was
going to open the door. Frightened,
Enciso managed to squeeze his car out of the area and drive off.
Enciso
drove around the block and then returned to Park Way,
where his apartment was located. Enciso
looked back and could see the taillights from the Mercedes by Philips's
house. Enciso went inside his apartment
and told his brother about the incident.
Enciso also talked to Philips on the phone, and Philips told him the
Mercedes was leaving in the direction of Enciso's home. Enciso went outside and saw the Mercedes
drive by his home. Enciso's brother
quickly got in his car to follow the Mercedes and get the license plate. Meanwhile, Enciso called 911 to report the
incident. When the 911 operator asked if
the people in the Mercedes looked like gang members, Enciso said the driver
(i.e., defendant) did.
Enciso's
brother was able to get the license plate number of the Mercedes and the
brothers provided the number to the police.
Defendant was apparently arrested several weeks later.
At trial,
the prosecution's gang expert opined that defendant was a gang member; staring
at a gang member is an act of disrespect that demands a response; and
hypothetical facts (like those underlying the charged offense) would benefit
the gang.
Defense
The defense
called three witnesses: defendant,
defendant's wife Munice, and a friend (Jennifer Betzler), to describe
defendant's version of what occurred during the incident on Park
Way.
According to these witnesses, the three of them, along with defendant's
and Munice's baby, were in a department store parking lot when defendant and
Munice started arguing about Munice wanting to visit her ex-boyfriend (Efrain
Quintero) who lived in a home behind the residence where the charged assault
occurred. During the argument, Munice
ran into the store, and defendant was thereafter unable to find her. Defendant, accompanied by Betzler and the
baby, drove the short distance to Park Way
where Quintero lived. When they saw a
car pull up by Quintero's residence, Betzler suggested that defendant check to
see if Munice was inside the car.
Defendant,
who walks slowly and sometimes uses a cane due to a work injury, got out of his
car holding the cane in one hand to help him stand up. In his other hand, he was holding two cell
phones (belonging to him and to Betzler) that he had grabbed from his lap. Defendant lifted his hand to point at
Quintero's house and started to ask the man in the car if he had seen his wife
walking around, but the car sped off.
Defendant
claimed he did not look at the man as they passed each other in their
cars. Also, defendant and Betzler
testified he did not yell at the man; he did not touch the man's car or pull on
his car door; and he did not have a gun.
Shortly after, Munice (who had hidden in the women's dressing room at
the department store) called from her cell phone, and defendant and Betzler
returned to the store and picked her up.
Concerning
the gang enhancement allegation, defendant testified he was in a gang when he
was younger, but he quit the gang at age 21, had children, and "tried to
be a family man."
Jury Verdict and Sentence
Defendant
was charged with assault with a semiautomatic firearm (count 1, Pen. Code,
245, subd. (b)); assault with a firearm (count 2, § 245, subd. (a)(2)); and
possession of a firearm by a felon (count 4, former § 12021, subd. (a)(1).)
for personal use of a firearm (counts 1 and 2), and committing the offense to
benefit a gang (counts 1, 2, and 3). The
jury convicted defendant of the charged offenses, found the personal firearm use
allegations to be true, and rejected the gang enhancement allegations. Defendant admitted several allegations based
on his prior convictions, including a serious felony prior and a strike prior. The trial court sentenced him to 17 years in
prison; i.e., 12 years for the count 1 assault with a semiautomatic firearm
(double the middle term based on the strike prior) and five years for his
serious felony prior conviction. The
court struck the punishment on the count 1 personal firearm use enhancement, and
stayed the sentences on the remaining counts.
DISCUSSION
I.
Defendant
argues the trial court erred by allowing the prosecutor to display photographs
depicting a semiautomatic gun and a revolver during direct examination of
Enciso.
A.
Background
Prior to
trial, Enciso told the authorities and others that defendant had a gun during
the incident, and he specifically identified the gun as a semiautomatic. However, at trial, Enciso did
had a gun; rather, he qualified his statements by saying the object in
defendant's hand appeared to be a gun, and he thought defendant had a gun but
it could have been another object. Also,
Enciso testified he could not describe the object in defendant's hand.
The
testimony in this regard included the following:
"[Enciso:] And he pulled out what appeared to be a weapon, but
it could have been anything. Could have
been a stapler I mean.
[¶] . . . [¶] He
had what appeared to be a handgun,
but I couldn't describe the handgun or— [¶] . . . [¶] I told [the police] exactly what happened;
that there was a vehicle that pulled in front of my car, looked like he had a gun, thought he was going to sho[o]t at
me . . . .
[¶] . . . [¶]
"[Prosecutor:] You told 911 it was a handgun, correct?
"[Enciso:] Yeah.
I was scared that night.
[¶] . . . [¶]
"[Prosecutor:] You told 911 that it was a small handgun?
"[Enciso:] Correct. . . .
[¶] . . . [¶]
"[Prosecutor:] And when you talked to the police, you told
them that it was a small black handgun . . . [¶]
. . . [¶] that Mr. Arroyo had in his hand?
"[Enciso:] Yes. . . .
[¶] . . . [¶]
"[Prosecutor:] Describe the weapon that was in Mr. Arroyo's
hand.
"[Enciso:] Probably couldn't describe it to you. It was dark.
I mean, like I said, it was dark that night. I was scared.
Thought he had a gun. I mean someone driving toward me, parks in
front of my car, walks toward my car, the only thing I could assume is he is
trying to carjack me. Living in that
area you have to assume that.
handgun. I mean,
I didn't spend too much time staring at his hand." (Italics added.)
To
rehabilitate Enciso's failure at trial to describe the gun as a semiautomatic,
the prosecutor told Enciso he was going to show him "examples" of
guns and Enciso should say if he knew "the difference." The prosecutor displayed a photograph of a
semiautomatic, and asked if Enciso "generally" recognized the item in
the photo. The prosecutor then asked
essentially the same questions with a photo of a revolver. In response, Enciso identified the items in
the photos as a semiautomatic handgun, which loaded through a clip in the handle,
and a revolver, for which bullets are loaded through the cylinder in the center
of the gun. The prosecutor also elicited
testimony from Enciso that he was afraid to testify because he and his family
had been threatened several times about his testifying, including by
defendant's wife.
Later,
during a discussion outside the presence of the jury, the prosecutor requested
that the photos be admitted into evidence, stating that Enciso told the police
that defendant had a semiautomatic gun, and the photos showed that Enciso knew
the difference between a semiautomatic and a revolver. The trial court rejected the prosecutor's
request to admit the photos into evidence, but stated the prosecutor could
properly display the photos to show that Enciso knew the difference between the
two types of guns. The court also
declined a defense request to admonish the jury that the photos did not depict
the gun purportedly used in the incident, but said
on cross-examination. On
cross-examination, Enciso acknowledged that he viewed the photos shown by the
prosecutor solely to show he knew the difference between a semiautomatic and a
revolver, and that he did not know anything about the specific semiautomatic
weapon displayed in the photo.
The
prosecutor also displayed the gun photos during the testimony of prosecution
witness Detective David Beatty.
Detective Beatty testified that when he interviewed Enciso, Enciso said
defendant was carrying a semiautomatic, and Enciso did not express any doubt
that there was a gun in defendant's hand.
The prosecutor showed the detective the same photos shown to Enciso and
had the detective identify them as depicting "an example" of a
semiautomatic and a revolver. On
cross-examination, Detective Beatty acknowledged that no gun was found that was
attributed to defendant, and he had no knowledge of any connection between the
semiautomatic described at trial and the gun allegedly used by defendant.
B. Analysis
A trial court has broad discretion
to determine relevancy and whether probative value is outweighed by concerns of
undue prejudice under Evidence Code section 352. (People
v. Horning (2004) 34 Cal.4th 871, 900.)
We do not disturb the trial court's ruling unless the court exercised
its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1124.)
To support
his contention that the court abused its discretion, defendant asserts there
was no showing the photos depicted a gun similar to the one used in the crime,
and absent this showing the display of the photos had no relevance and was more
prejudicial than probative. The
contention is unavailing. The court
could reasonably find that the photos were relevant to support the charge of
assault with a semiautomatic firearm given that Enciso told the police
defendant had a semiautomatic, but at trial said he could not describe the item
in defendant's hand. Based on Enciso's
equivocal trial testimony, the trial court reasonably permitted the prosecutor
to display the gun photos to show that semiautomatic guns and revolvers are
visually distinguishable; Enciso knew the difference between the two types of
weapons; and his pretrial statement to the police that defendant had a
semiautomatic weapon should be credited.
The court did not abuse its discretion in finding that the relevancy of
this evidence outweighed its potential for prejudice given Enciso's failure at
trial to provide a description of the item consistent with his pretrial
statements.
Defendant
also argues the trial court improperly refused the defense request to admonish
the jury about the limited purpose of the photos, and the prosecutor improperly
used the photos to suggest that they depicted the weapon used by
defendant. The record does not show
error in this regard. When questioning
Enciso and the detective about the photos, the prosecutor made clear that he
was showing them only as examples of these types of guns. Further, on cross-examination of Enciso and
the detective, defense counsel elicited testimony confirming that the photos
were being shown to support that Enciso knew what a semiautomatic firearm
looked like, and that no weapon was found that had been connected to
defendant. There is nothing in the
record that suggests the jury might have been misled to think the photos
depicted the actual weapon allegedly used in the offense.
II.
Parties
That Victim Said
Defendant Had a Gun
Defendant
asserts the trial court erred in admitting hearsay evidence that Enciso told
third parties that defendant had a gun.
A. Background
After
Enciso's testimony, the prosecutor was permitted to introduce hearsay testimony
from several witnesses who testified that Enciso told them defendant had a
gun. Defendant challenges the admission
of hearsay testimony on this point from (1) witness Alicia Alvarado who talked
with Enciso about the incident some time after it occurred, and (2) the
detective and district attorney investigator who interviewed Enciso about the
incident.
Alvarado,
who lived at Philips's residence, testified that Enciso talked to her briefly
about the incident the day after it occurred.
When the prosecutor asked Alvarado, "Did [Enciso] specifically tell
you it was a gun?" Alvarado answered, "Yes." Detective Beatty, who interviewed Enciso on
May 12, 2010, testified that Enciso, expressing no doubt, told him that
defendant was carrying a gun and that it was a semiautomatic.
office, Matthew O'Deane, testified that when he interviewed Enciso on October
6, 2010 and March 9, 2011, Enciso said defendant pointed a handgun at him while
trying to open the car door. O'Deane
asked Enciso if defendant could have been holding another object, for example a
walking cane, and Enciso replied, "[N]o.
It was definitely a handgun."
After
Alvarado's testimony, in a discussion outside the presence of the jury, defense
counsel moved to strike Alvarado's testimony that Enciso said defendant had a
gun because the testimony was hearsay about statements made "days"
after the incident. In opposition, the
prosecutor argued that Enciso had changed his story because he had been
threatened and he was now saying he was not certain defendant had a gun;
accordingly, his previous inconsistent statements about defendant having a gun
should be admitted. The court declined
to strike Alvarado's testimony. The
court stated that in Enciso's trial testimony, he acknowledged that he told
people that defendant had a gun; however, he was now unable to testify that he
was certain that it was a gun. The court
ruled the prosecutor could properly impeach Enciso's trial testimony with
testimony from third parties showing that Enciso made previous statements
certain defendant had a gun.
B. Analysis
Under the
prior inconsistent statement exception to the hearsay rule, a witness's prior
statement is admissible if the witness's trial testimony is inconsistent with
the prior statement. (Evid. Code, §
1235; People v. Johnson (1992) 3
Cal.4th 1183, 1219.) A trial court may
find a witness's testimony is impliedly inconsistent when the witness testifies
in a deliberately evasive manner. (
983, 1008-1009.) On appeal, we review
the trial court's ruling for abuse of discretion, and uphold the ruling if
there is a reasonable basis for the court's conclusion. (People v . Hovarter, supra, at pp. 1007-1008; People v. Johnson, supra, at
pp. 1219-1220.)
At trial,
Enciso failed to definitively identify the item in defendant's hand as a gun;
rather, he testified he thought Enciso had a gun but it could have been any
other item, even a stapler. In contrast,
in his pretrial statements he unequivocally told Alvarado, the detective, and
the district attorney investigator that defendant had a gun. Given the inconsistency between Enciso's pretrial
and trial statements on the key disputed issue of whether defendant had a gun,
the trial court did not abuse its discretion in admitting Enciso's statements to third parties that
defendant had a gun under the prior inconsistent statement exception to the
hearsay rule.
Defendant
argues the hearsay testimony from the third parties that Enciso said he had a
gun should have been excluded under Evidence Code section 352 because it was
cumulative and more prejudicial than probative.
He asserts that because Enciso admitted at trial that he told the
authorities defendant had a gun, the hearsay testimony was repetitive and
"served no purpose other than to give the appearance through numerous
witnesses that a gun existed." The
trial court was not required to exclude the evidence on cumulative
grounds. Although Enciso acknowledged at
trial that he told the authorities defendant had a gun, he also sought to
explain his pretrial statements by saying that he assumed the item was a gun
because he was afraid that night, it was dark, and the circumstances and
neighborhood led him to believe defendant was trying to carjack him. The trial court reasonably allowed the
prosecutor to support its case by presenting testimony from the third parties
who described Enciso's straightforward reports that defendant had a gun. The testimony from the third parties
strengthened the prosecutor's theory that Enciso was backtracking on his
earlier unequivocal statements because he was afraid, not because he was
actually uncertain whether defendant had a gun.
Further,
the trial court was not required to conclude the hearsay testimony was unduly
prejudicial. Undue prejudice does not
exist merely because highly probative evidence is damaging to the defense case,
but rather arises from evidence that uniquely tends to evoke an emotional bias
against the defendant or cause prejudgment of the issues based on extraneous
factors. (People v. Doolin (2009) 45 Cal.4th 390, 438-439.) Enciso's prior inconsistent statements were
highly relevant to the key disputed issue, and they did not involve emotional
or extraneous matters unrelated to the issues.
III.
Threatened the
Victim After the Crime
Defendant
argues the trial court erred in overruling his Evidence Code section 352
objection to the evidence that his wife, Munice, threatened Enciso after the
crime and told him he should not testify.
A. Background
Prior to
defendant's trial, Munice pled guilty to being an accessory after the fact
based on a confrontation she had with Enciso during which she threatened him
and told him not to testify. The parties
agreed there was no evidence that defendant was involved in her threatening
conduct. During pretrial motions, the
prosecutor argued the evidence of Munice's threat to the victim was highly
relevant to her credibility, and also to the frame of mind of prosecution
witnesses when they come to court to testify.
The trial court agreed that Munice's attempt to keep the victim from
testifying against defendant was highly relevant to her credibility, and
declined to exclude the evidence. The
court stated defense counsel could use cross-examination to ensure the jury did
not impute Munice's conduct to defendant, and agreed to admonish the jury that
Munice's conviction arising from this conduct was relevant only to evaluate her
credibility.
When Enciso
testified at trial that he thought defendant had a gun but was not certain, the
prosecutor elicited testimony from him that he was afraid to testify because he
and his family had been threatened.
Enciso testified that some time after his encounter with defendant, he
learned from his family that someone who knew defendant had stopped at their
apartment, harassed them, and told them to tell Enciso not to testify. On another occasion Enciso was standing
outside Philips's residence with Munice's ex-boyfriend (Quintero) who lived in
a home behind Philips's home. When
Munice arrived in front of the residence and figured out that Enciso was the
person involved in the case against her husband, she yelled angrily at
him. She told Enciso that he knew
defendant did not have a gun; Enciso was messing with her family and did not
know what he was talking about; Enciso should not testify; and "this isn't
over." Munice also threw a
cigarette at Quintero's face and hit him.
Also, on
cross-examination of Munice, the prosecutor asked her if in 2011 she was
convicted of a felony that affects her credibility, and whether the conviction
arose from her "going over and confronting . . . Enciso"
about the current case. Although she
denied that her conversation with Enciso was threatening, she acknowledged she
pled guilty based on making a threat to Enciso.
After Munice's testimony, the court instructed the jury on the limited
purpose of this evidence:
"[Y]ou've heard
evidence from Munice Arroyo that she was convicted of a crime after some
discussions with the victim in this matter.
I wanted to tell you that this is in no way any evidence against Mr.
Arroyo. Mr. Arroyo has not been implicated in that conversation in any way and
you can use the evidence only as it affects Mrs. Arroyo's credibility, but
has nothing to do with Mr. Arroyo and is not any evidence in any way against
him. It is [admitted] only for that
limited purpose as to one of the factors you can consider when assessing the
credibility of Mrs. Arroyo."
(Italics added.)
After the
court gave this admonition, the prosecutor requested that the court further
instruct the jury that it could also consider the threat evidence to support
Enciso's credibility. The court declined
to add this to the admonition, but said the prosecutor could make this argument
in closing arguments to the jury.
B. Analysis
The trial
court reasonably permitted the prosecution to present evidence of Munice's
threat to Enciso to support that Enciso's equivocal trial testimony on the gun
issue was the result of his fearful reaction to the threat, and that Munice was
not a credible witness given her pretrial attempts to interfere with Enciso's
participation in the trial. The fact
that defendant was not involved in Munice's threat does not detract from the
high relevancy of the threat evidence on the issues of Enciso's fear of
testifying and Munice's credibility.
Further, the court took measures to ensure that the jury did not
inappropriately attribute Munice's threat to defendant by explicitly
instructing the jury that defendant was not "in any way" implicated
in the conversation between Enciso and Munice, and the evidence could only be
considered to evaluate Munice's credibility.
We presume the jurors understood and followed this instruction. (People
v. Gray (2005) 37 Cal.4th 168, 217; People
v. Lopez (2011) 198 Cal.App.4th 698, 708.)
Defendant
argues the jury could have judged Munice's credibility based on the mere fact
of her convictions; there was no need to provide the jury with the details of
her threat to Enciso; and these details served no purpose other than placing
defendant in a "bad light."
For the reasons we have stated, this contention fails. The details of the threat evidence were
relevant to show Enciso was afraid to testify, and that Munice was not a
credible witness given her attempt to interfere with the prosecution of the
case.
Defendant
also argues the court erred because although it gave the limiting admonition
about the threat at the time of Munice's
testimony, it refused to give the limiting instruction when defense counsel
requested it in response to the prosecutor's elicitation of the threat
testimony during Enciso's testimony. Assuming arguendo the court abused its
discretion by failing to expressly tell the jury that the limiting instruction
also applied to Enciso's testimony about the threat, the error was harmless. The jurors knew from the admonition given at
the time of Munice's testimony that defendant was not at all involved in
Munice's threatening conduct. Given this
clear instruction, there is no reasonable probability the jurors were misled to
believe that defendant was part of the threatening conduct described by
Enciso. (See People v. Manning (2008) 165 Cal.App.4th 870, 880 [reversal for
failure to give limiting instruction requires reasonable probability of
different outcome].)
IV. Admission
of Gang Expert Testimony
Defendant
argues the trial court abused its discretion under Evidence Code section 352 by
admitting expert testimony on gang-related matters. Although the jury rejected the gang benefit
enhancement allegations (§ 186.22, subd. (b)(1)), he asserts admission of the
gang expert's testimony prejudiced the jury against him on the issue of whether
he had a gun.
During
pretrial motions, defendant objected to admission of
the evidence would show the crime was not gang related. The trial court rejected his argument,
reasoning that because the gang enhancement allegation was bound over for trial
after the preliminary hearing, the prosecutor was entitled to present evidence
to support the gang enhancement.
At trial,
Enciso testified that defendant was "staring hard" at him in a
"kind of aggressive" manner, and acknowledged that he stared back at
defendant. In the 911 call played for
the jury, Enciso told the operator that defendant looked like a gang
member. The prosecution's gang expert
testified that staring in gang culture can be an act of disrespect that must be
responded to so the gang member does not appear "weak." Further, the expert generally described gang
culture; explained how gang members carry weapons and commit assaults and
robberies to increase status; described defendant's gang tattoos and opined
that defendant was a gang member even though he at times told the police he was
inactive; and opined that hypothetical conduct akin to the facts of the current
offense promoted the gang.
Defendant
has presented no grounds to support that the court abused its discretion in
admitting the gang expert testimony.
Regardless of the strength of the evidence that the crime was gang
related, the prosecution was entitled to present evidence in support of the
gang enhancement allegation. (See
789, 818-820.)
V. Defense
Witness Betzler's Appearance in Prison Clothing
Defendant
argues the trial court erred when it failed to have defense witness Betzler
wear civilian, rather than prison, clothing.
Prior to
calling Betzler as a witness, defense
counsel told the court that Betzler was in custody and asked whether he
should obtain civilian clothing for her.
During the ensuing discussion, the court and prosecutor stated they did
not think this was typically done for witnesses, and the court noted she did
not have the same rights as defendant to shield her custody status from the
jury. Defense counsel did not pursue the
matter further, and Betzler apparently appeared before the jury in prison
clothing. Just before Betzler commenced
her testimony, at defense counsel's request, the trial court told the jurors
that they could see she was in custody; they should not speculate about the
reason for her being in custody; the fact she was in custody did not by itself
make her more or less believable; and they should evaluate her testimony in the
same way as any other witness's testimony.
The trial court repeated essentially the same admonition when
instructing the jury at the conclusion of the trial.
Upon a
timely request, a defendant has a right to have defense witnesses appear before
the jury in civilian, rather than prison, clothing. (People
v. Froehlig (1991) 1 Cal.App.4th 260, 264.)
The trial court erred in failing to afford this right to defendant when
defense counsel raised the issue of Betzler's clothing. However, the error was harmless because there
is no reasonable probability it affected the outcome. (People
v. Ceniceros (1994) 26 Cal.App.4th 266, 278-280.) The rule that defense witnesses should not be
required to appear in prison clothing is designed to obviate the possibility
that the jury might question their credibility because they have committed a
crime and are incarcerated. (See
properly permitted to elicit testimony from Betzler that she had sustained six
felony convictions that affected her credibility (in 2003, 2004 (two
convictions), 2005, 2006, and 2007).
Thus, the jurors knew that Betzler had repeatedly engaged in felonious
criminal conduct, and the only additional information provided to them from her
prison clothing was that she was currently incarcerated for her criminal
conduct. Given that the jurors properly
knew she had sustained numerous felony convictions, there is no reasonable
probability that their assessment of her credibility would have been substantially
altered by their knowledge of the fact that she was currently incarcerated.
VI. Sufficiency
of the Evidence of Assault
Defendant
argues there was insufficient evidence to establish that he committed an
assault. He contends the evidence did
not show that he committed an act that by its nature would directly and
probably result in the application of force.
To commit the offense of
assault, the defendant must willfully perform an act that by its nature will
probably and directly result in the application of physical force against
another. (People v. Chance (2008) 44 Cal.4th 1164, 1169.) In evaluating a challenge to the sufficiency
of the evidence, we review the entire record in the light most favorable to the
judgment to determine whether there is substantial evidence from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We presume in support of the judgment the
existence of every fact the jury could reasonably deduce from the
evidence. (Ibid.)
Enciso
testified that it appeared that defendant was grabbing toward his car door
handle: "Looked like he was going
to grab my car door. Could have sworn he
grabbed the handle." Also, Enciso
testified the gun was pointed under the window line of the door, and thus it
was pointed in the direction "anywhere . . . from
[his] waist down . . . ." When queried further on this point, Enciso
agreed that if the gun had "gone off" the bullet "would have
gone through the door and hit [him] in the leg." Corroborating this assessment, Detective
Beatty testified that a handgun can be fired through a car door and harm the
occupants of the vehicle, and that Enciso told him that defendant was pointing
the gun at Enciso's "torso or leg area." Drawing all reasonable inferences in favor of
the jury's verdict, the jury could reasonably find that defendant's act of
pointing the gun at the car door and grabbing towards the door handle reflected
aggressive conduct showing that defendant could have readily fired the gun and
hit Enciso with a bullet.
To support
a contrary conclusion, defendant asserts there was no evidence he threatened
Enciso; the gun was pointed down and below the window line during the entire
incident; and Enciso did not see defendant make any motion towards him with his
hand. These factors do not defeat the
evidentiary support for the verdict based on defendant's aggressive conduct
indicating he could have shot at Enciso.
VII. Alleged
Prosecutorial Misconduct During Closing Argument
Defendant
argues the prosecutor committed misconduct during closing argument by implying
that the defense witnesses' descriptions of the incident were fabricated with
the assistance of defense counsel, and by vouching for the integrity of
prosecution witness Enciso.
In support,
defendant points to the following portions of the prosecutor's closing
argument. The prosecutor argued to the
jury that initially after the crime Enciso told people, including the
authorities, that defendant pointed a gun at him; thereafter, he and his family
were threatened by defendant's wife and others; and by the time of trial Enciso
was "scared out of his mind."
The prosecutor also argued that during the same time period as the
threats, "all of a sudden" the defense "has a witness";
i.e., Betzler. The prosecutor stated:
"Then out of
the blue, right in that same time period, we've got Jennifer Betzler, who pops
out of nowhere. She comes in. She
talks to defense. And now, all of a
sudden, defense has a witness. And that
witness magically says the exact thing that they need the testimony to
say." (Italics added.)
At this
point, defense counsel objected that the prosecutor was improperly suggesting
defense counsel had something to do with this, and the court overruled the
objection. The prosecutor then continued
his argument, stating that the version of the incident described by the defense
witnesses was unreasonable and fabricated:
"And what does
she magically say? Well, it wasn't a
gun. It was a cane. There was no gun. It was just a cane. He just stepped out of the car and the car
took off. How logical is that? Let's
think about that story they are all trying to make us believe. [Enciso] is at his friend's house. A car, according to their story, slowly pulls
up to them and he stands up and [Enciso] loses his mind and drives off. That is not reasonable—it is his
neighborhood—because it didn't happen like that. That is
a story that they fabricated. No
gun, just a cane. That is all. She said that is all he had. [¶]
Then we come in here to testify.
And between there she has clearly
had conversations with people. . . . She comes to testify.
[¶] . . . [¶]
"Munice Arroyo
comes in here and talks. We know about
her background. Jennifer Betzler comes
in. We know about her felony background
in chains. And what does she say
now? Oh, gun and two cell phones, two
cell phones in his hand.
story is kind of ridiculous. We have to
come up with something a little better.
So now we have two cell phones.
She says [defendant] gets out of the car with the cane and two cell
phones by his side, and that is all he does, and the car just drives off. Is that reasonable? Does that even make any sense? No. Both
say he didn't get close to the car and [Enciso] loses his mind and takes
off. It is not reasonable. It is a
story they come up with to try to get out of the charges in this case. [¶]
he was so scared, and that's our case, because he knew it was a gun." (Italics added.)
Defendant
also cites a portion of the prosecutor's rebuttal closing argument, where the
prosecutor stated that defendant was on trial because he committed an assault,
and again asserted Betzler was not a credible witness. The prosecutor stated:
"The reason
he's here is because he pointed a gun at Martin Enciso, pulled on his door
handle and committed an assault on an innocent member of our
community. . . .
[¶] . . . [¶]
The people he brings in, Jennifer
Betzler, she has admitted to going in knowing she is breaking the law by
giving Munice [Arroyo], her best friend, her i.d. to go in and see Mr. Arroyo
when he is in jail. She's willing to
break the law for Munice [Arroyo] and her husband Ruben Arroyo. So she comes in here. You
think that is any big deal to lie a little bit to change her story just enough
to give him the hope one of you will be fooled by this." (Italics added.)
A
prosecutor is given wide latitude to vigorously argue the case as long as the
argument is "a fair comment on the evidence, which can include reasonable
inferences or deductions to be drawn therefrom." (People
v. Harrison (2005) 35 Cal.4th 208, 244.)
The prosecutor may properly argue "against the jury's acceptance of
the defense presented." (
576.) However, the prosecutor should not attack the integrity of defense counsel or suggest defense
counsel has fabricated a defense. (
732.) Further, the prosecutor may make
assurances regarding the reliability of a witness based on facts and inferences
drawn from the record, but should not refer to matters outside the record to
bolster the veracity of a witness. (
432-433.) When evaluating the
propriety of the prosecutor's comments to the jury, " 'the
question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.' " (People
v. Harrison, supra, 35 Cal.4th at p. 244.)
There is no
reasonable likelihood the jury interpreted the prosecutor's comments that the
defense version was fabricated to mean that defense counsel, as opposed to the defense witnesses, engaged in the fabrication. The prosecutor argued that Betzler fabricated
a story that defendant only had a cane and two cell phones, not a gun, and that
Betzler was not credible because of her criminal history and her willingness to
engage in acts of dishonesty for her best friend, defendant's wife. The prosecutor's statement that Betzler
emerged as a witness after talking "to defense" merely suggests that
Betzler talked to defense counsel; it does not, standing alone, indicate that
defense counsel assisted Betzler with a concocted story. The focus of the prosecutor's argument was
that the defense witnesses, including Betzler, Munice, and defendant,
fabricated a story to try to show that defendant engaged in innocent conduct that
was misinterpreted by the victim. When
the closing argument statements are viewed as a whole and in context, there is
no reasonable likelihood the jury thought the prosecutor was also attributing
the fabrication to defense counsel.
Further,
the prosecutor did not vouch for Enciso's veracity based on matters outside the
record. The prosecutor's statement that
the jury should consider Enciso's fearful emotions was properly based on the
VIII. Cumulative
Error
Defendant
argues he was deprived of a fair trial because of the cumulative effect of the
errors committed at his trial. We have
found one instance of error (a defense witness appearing in prison clothing),
and one instance of arguable error (the failure to expressly extend the
limiting admonition to Enciso's testimony about the threat from defendant's
wife). These errors were not of such
significance to cumulatively deprive defendant of a fair trial.
IX. Lesser
Included Offense
Defendant
was convicted of both assault with a semiautomatic firearm (count 1) and
assault with a firearm (count 2). The
trial court stayed the sentence on the count 2 conviction. As conceded by the Attorney General, assault
with a firearm is a lesser included offense of assault with a semiautomatic
firearm. (People v. Martinez (2012) 208 Cal.App.4th 197, 199.) A defendant may not be convicted of both a
greater offense and a lesser included offense.
(People v. Reed (2006) 38
Cal.4th 1224, 1227.) Accordingly, it is
not sufficient to merely stay the sentence on count 2; rather, the count 2
conviction must be stricken from the judgment.
DISPOSITION
The conviction for assault with a firearm (count 2) is
stricken from the judgment. As so
modified, the judgment is affirmed. The
trial court is directed to amend the abstract of judgment to remove the count 2
assault with a firearm conviction (and its accompanying enhancements). The court shall send a copy of the amended
abstract of judgment to the California Department
of Corrections and Rehabilitation.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
name="_ftn1" title="">[1] Under general appellate review standards, we summarize the
facts in the light most favorable to the jury's verdict. (See People
v. Dayan (1995) 34 Cal.App.4th 707, 709.)
In our Discussion section, we present additional testimony, particularly
concerning the disputed gun issue, as necessary to resolve defendant's
arguments on appeal.
name="_ftn2" title="">[2] Enciso explained that defendant's car was stopped close in
front of his car and he felt "pinned in[,]" but there was "just
enough space" for him to "squeeze out" and drive away.
