P. v. Benitez

 

 

 

 

 

 

 

Filed 6/24/13 
P. v. Benitez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   John Gilbert Benitez,               Defendant and Appellant.

B243018         (Los Angeles County       Super. Ct. No. GA084254)

 

 

            APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Michael D. Carter, Judge.  Affirmed.

 

            Jamilla
Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

 

            No
appearance for Plaintiff and Respondent.

 

            Defendant and appellant, John
Gilbert Benitez, appeals from the judgment entered following a jury trial which
resulted in his conviction of simple
battery (Pen. Code, § 242)href="#_ftn1"
name="_ftnref1" title="">[1]
and assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(1)), during the commission of which he personally
inflicted great bodily injury upon the victim who was not an accomplice to the
offense (§ 12022.7, subd. (a)).  The
trial court awarded Benitez five years probation, one condition of which was
that he serve the first 240 days in county jail.  We affirm.

>FACTUAL AND PROCEDURAL BACKGROUND

            1.  Facts. 

                        a.  The
prosecution’s case.

            In
September 2011, Jannell Garkow had worked for almost two years in a “beer bar”
called The Bit on Live Oak Avenue
in Arcadia.  Garkow knew Benitez as a regular customer at
the bar.  Garkow also recognized a man
named Steve Wyatt as a customer who came into the bar “once in a while.”

            Garkow
was working at the bar on the night of September
10, 2011.  When she started
her shift at 6:00 p.m., Benitez was
already there.  Before Wyatt arrived at
approximately 10:00 p.m., Garkow had
served Benitez between three and five beers. 
When he got to the bar, Wyatt ordered a beer.  However before he could drink it, a fight
broke out between the two men.  Garkow
did not see how the fight began, but when she heard a noise, she turned and saw
that Wyatt had “fallen back on the bar.” 
When Wyatt got up, Benitez grabbed him by the neck or throat and started
to hit Wyatt with his hand.  Wyatt’s
girlfriend approached Benitez and he hit her in the face with his fist.  In the meantime, Wyatt, who had fallen to his
knees, attempted to get up.  Benitez,
however, kicked Wyatt, who then lost consciousness for a short time.  At this point, Garkow walked around the bar,
approached Benitez and told him to leave. 
Although it took awhile, Benitez “left eventually.”  Garkow then noticed Wyatt was “bleeding from
his head and his nose” and “[t]here was blood all over[.]”  Wyatt indicated he was “a little dizzy [and
was acting as though] he wasn’t sure what [had] happened.”

            The
bar has video surveillance cameras and a CD made from several of the videos
taken during the altercation between Benitez and Wyatt showed “contact” between
the two men.  The CD showed Benitez push
Wyatt, then showed Wyatt “get up and go towards [Benitez] and [Benitez] put his
. . . arm . . . around” Wyatt’s neck. 
Although Garkow did not recognize Wyatt in the CD, she believed it showed
him falling because she had actually seen him “fall down.”

            After
Benitez left the bar, Garkow, Wyatt’s daughter and another customer took Wyatt
to the men’s bathroom and, using a wet towel, attempted to “clean him up.”  Wyatt asked them, “ â€˜What happened?  Why did he do that?’ â€  A few minutes later, sheriff’s deputies
arrived at the bar.

            Steve
Wyatt remembered going to The Bit on September
10, 2011.  When he arrived at
the bar, Wyatt saw Benitez.  Wyatt had
seen Benitez on prior occasions, but had never had a conversation with him.

            When
Wyatt first arrived at The Bit on September
10, 2011, he and his girlfriend, Maryann Rivera, sat down at the
bar and Wyatt ordered a beer.  Wyatt then
went to the restroom.  Wyatt’s daughter
was supposed to meet Wyatt at the bar and, as he was walking back from the
restroom he was reading a text message he had received from her.  Because he was looking at his phone, Wyatt
did not see Benitez and the two men bumped into each other.  Benitez said something to Wyatt which Wyatt
did not understand, then “gave [Wyatt] a two-hand shove” in the shoulders.  Wyatt “flew up against the bar next to [his]
girlfriend[,] . . . put [his] phone down” and said “ â€˜What the
“F”?’ â€  When he then got up and
moved toward Benitez, Benitez “punched [Wyatt] in the face.”  The next thing Wyatt remembered was “[b]eing
picked up off the ground.”  He was
bleeding and someone had handed him a towel from the bar.  Wyatt remembered “being in the bathroom and
looking in the mirror and wiping [his] face off with the towel.”  After he came out of the bathroom, Wyatt, who
was “[d]azed and confused,” asked his girlfriend, Rivera, who had called 911,
“what [had] happened.”

            As
a result of the altercation, Wyatt was required to have 12 stitches around his
eye, suffered a laceration on his nose, had bruises around his neck and a black
eye.  In terms of “lasting” effects,
Wyatt attributed the fact he sometimes has “foggy days,” or days when “things
are [not] as clear as they used to be,” to the injuries suffered during the
altercation with Benitez.  Moreover,
Wyatt’s eye did not heal “correctly.” 
According to Wyatt, “[i]t stayed swollen and continued to ooze liquid”
for approximately four months.  Wyatt
also suffers from headaches and dizziness. 
These symptoms occur approximately once a week and affect his ability to
walk and drive.  Finally, Wyatt has an
approximately three-eighths inch scar on his nose and two “jagged” scars, each
of which is between one-half and three-quarters of an inch long, on his
“eyebrow area.”

            Deputy
Sheriff Kyle Otis of the Los Angeles County Sheriff’s Department and his
partner, Deputy Mikesell, were on patrol in a marked car when, at approximately
10:30 p.m. on September 10, 2011, 
they responded to a call directing them to The Bit bar.  There, Otis saw Benitez, who had been
“detained pending an investigation.” 
Benitez was hand-cuffed, taken into custody and placed in the back seat
of a patrol car.  There, Otis advised him
of his rights pursuant to Mirandahref="#_ftn2" name="_ftnref2" title="">[2]> and, after Benitez indicated that he
understood those rights, he told Otis he had been “attacked by a White male who
punched him in the right eye and he defended himself.”  Benitez also indicated a White female had
“c[o]me at him” and he had again defended himself.

            While
at the bar, Otis had observed Wyatt’s wounds. 
The deputy “saw a laceration over [Wyatt’s] left eye split open” and “he
was bleeding profusely.  [Wyatt also] had
. . . some kind of a knot on his nose.”

            Benitez
was transported to the jail, where Otis went through “his articles of clothing
[and] items of property.”  Otis noticed
there was blood on Benitez’s shoes and socks.

 

 

                        b.  Defense
evidence.

            Benitez
testified he works as an “umpire and a day trader.”  On September 10,
2011, Benitez went to a bar called The Bit in Arcadia.  Benitez had drunk two or three beers and had
ordered another one while he was practicing at the shuffleboard table.  After throwing down a puck, he had backed up
slowly.  Benitez and Wyatt, whom Benitez
had never met before, “bumped into each other.” 
Wyatt said something which Benitez did not understand and when Benitez
asked for an explanation, Wyatt cursed at him and “sprayed [him] with
spit.”  Benitez pushed Wyatt with his
right hand, then stepped back to avoid any “trouble.”  Wyatt, however, fell back into the bar stools
and, when Benitez looked in that direction, he saw Wyatt place his cell phone
on the bar, then approach Benitez with a closed fist.  Although he had hoped that the altercation
was over, at that point, Benitez “knew . . . [he] had to defend [him]self
because [he] had no other choice, and [he] swung back” at Wyatt.  Wyatt hit Benitez in his right cheek, causing
it to bruise.  Benitez then picked up
Wyatt and “[wrestled] him to the ground.” 
As they were fighting, Wyatt’s girlfriend, Rivera, approached Benitez
and kicked him in the left leg.  Wyatt,
who was by this time on his knees, grabbed Benitez by both his legs.  After Benitez, who was still standing, was
able to free his right leg from Wyatt’s grasp, he “backed up
and . . . kick[ed] [Wyatt].” 
Benitez then walked out of the bar through the back entrance.

Benitez had
“punched” Wyatt because “he was coming at [Benitez] in a threatening manner
[with] a closed hand fist.”  Benitez felt
Wyatt was going to hurt him and he had to defend himself.

            With
regard to the blood found on his shoes and socks, Benitez explained:  “Well, Mr. Wyatt had me by the legs and
blood was on my thigh dripping down towards my sock, and it pooled . . . on the
top of my sock and was just dripping down.” 
Benitez also testified that, contrary to the deputy’s testimony, Otis
did not interview him at the scene.  The
deputy simply handcuffed him and placed him in the back seat of a patrol car.

            Rosanne
Velarde had met Benitez through her husband approximately 15 years
earlier.  She considered Benitez a
friend.  They had been to each other’s
homes and saw each other approximately once a week.  Velarde considered Benitez a “gentle man” who
did not get angry easily.  In the 15
years she had known him, Velarde had never seen Benitez become violent.

            Brandon
Cascarano knew Benitez because they both frequented The Bit bar.  Cascarano was at the bar on the evening of
September 10, 2011 and he saw some of the fight between Benitez and Wyatt.  Cascarano was at the bar, facing the bar,
when he heard a commotion and voices. 
When he turned to see what was happening, Cascarano saw Wyatt moving
toward Benitez with his arm bent as though “he was going for a punch.”  Wyatt punched Benitez, who then hit Wyatt
back.  The two men were punching at and
wrestling with each other.  Cascarano,
who saw blood after the two men started to hit one another, also saw Wyatt
holding Benitez by the knees.  Benitez
broke free of Wyatt’s grasp by backing up and “kind of kick[ing his leg] away
from [Wyatt].”  After he had freed himself
from Wyatt’s grip, Benitez walked out the bar’s back entrance.

            2.  Procedural
history.

            Following
a preliminary hearing, on May 15, 2012 an amended information was filed, the
first count of which alleged that on September 10, 2011 Benitez committed the
crime of battery with serious bodily injury, a felony in violation of section
243, subdivision (d).  It was further
alleged with regard to that count that the offense was a serious felony (§
1192.7, subd. (c)) requiring registration (§ 290, subd. (c)) and that time
imposed for the offense was to be served in state prison (§ 1170, subd.
(h)(3)).  In the second count it was
alleged that, on or about September 10, 2011, Benitez committed assault by
means of force likely to produce great bodily injury, a felony (§ 245,
subd. (a)(1)).  It was further
alleged as to that count that, because Benitez had personally inflicted on the
victim great bodily injury (§ 12022.7, subd. (a)), the offense was a serious
felony (§ 1192.7, subd. (c)(8)).

            Before
trial it was determined that Benitez faced a term of seven years in
prison.  The People had made Benitez an
offer of five years of formal probation, one condition of which would be that
he serve one year in county jail. 
Defense counsel indicated that Benitez had counter-offered with a plea
to misdemeanor battery and “straight probation,” an offer the prosecution was
not willing to accept.

            At
an Evidence Code section 402 hearing, the district attorney indicated Benitez
had suffered a conviction for violating section 415 in 2006.href="#_ftn3" name="_ftnref3" title="">[3]  However, since the prosecutor did not know
the facts underlying the conviction, the trial court determined the conviction
“ha[d] no validity” or “weight.”  In
addition, it could be prejudicial.  The
jury might conclude that, because Benitez had a prior misdemeanor conviction,
“he [might] be more likely to be guilty of [the present offense].”

            At
the same proceedings, the prosecutor disclosed that she had just recently
learned the victim in this matter had been arrested in 1982 for committing
battery in violation of section 242 and had been subsequently convicted of
violating section 415.  Defense counsel,
the prosecutor and the trial court all agreed that the conviction was too
remote to be relevant and, accordingly, it would not be mentioned at trial.

            With
regard to Wyatt’s medical records, the trial court determined only portions of
the records would be allowed into evidence because much of the information
contained in them amounted to inadmissible hearsay.  The prosecutor and defense counsel agreed to
prepare a stipulation regarding which portions of Wyatt’s records would be
presented to the jury.  However, there
was one aspect of the records on which counsel could not agree.  It was indicated a CT scan showed Wyatt had
suffered “a fracture of the superior aspect of the nasal bone, but” it was “of
uncertain age [although it] could be relatively acute.”  The prosecutor asserted, although one could
not tell from the report how old the injury was, since the report indicated it
“could be relatively acute,” it should be allowed.  The fracture could easily have resulted from
the incident involving Benitez.  Defense
counsel, on the other hand, argued the evidence was “speculative.”  Counsel indicated there was no expert
testimony indicating the fracture “resulted from the 9/10/201[1]
incident.”  Counsel continued, “It’s
simply a remark there is evidence in a CT scan of a fracture of uncertain
date.  I think its prejudicial effect . . .
outweighs any probative [value].”  The
trial court determined, pursuant to Evidence Code section 352, the probative
value of the evidence outweighed any prejudicial effect it might have “because
[it] seem[ed] to be a neutral sentence that [could] be argued by both
sides.”  The court indicated it would
allow the evidence to be presented at trial.href="#_ftn4" name="_ftnref4" title="">>[4]

            After
the prosecution presented its case, defense counsel moved for “a judgment of
acquittal for insufficiency of the evidence[.]” 
(§ 1118.1.)  Counsel argued  the testimony had not been convincing and the
CD simply showed “people wrestling on the floor.”  Counsel indicated, at worst, “this [case
presented] mutual combat.”  The
prosecutor opposed the motion, asserting “there [was] no evidence . . .
Mr. Wyatt ever punched Mr. Benitez.” 
The trial court denied the motion “based on the evidence . . .
presented thus far . . . .”

            After
hearing the trial court’s instructions and argument by the parties, the jury
retired to deliberate on the afternoon of May 17, 2012.  At 12:11 p.m. on May 18, 2012, the jury
foreperson informed the trial court the jury had reached verdicts.  After the foreperson handed the verdict forms
to the bailiff, who in turn handed them to the court, the trial court indicated
it “need[ed] to have the jury go back and take a look at the verdict
forms.”  The court stated it wanted the
jury to “take a look” at the forms, then referred the jury to “jury instruction
3517.”href="#_ftn5" name="_ftnref5" title="">[5]

            Several
minutes later, at 12:21 p.m., the jury returned to the courtroom.  The foreperson handed the verdict forms to
the bailiff, who in turn handed them to the court.  The trial court then instructed the court
clerk to read the verdicts.  With regard
to count 1, the clerk read:  [¶]  “We, the jury, . . . find the defendant, John
Gilbert Benitez, not guilty of battery with serious bodily injury upon the person
of Steve Wyatt in violation of . . . section 243[, subdivision]
(d) . . . .”  The
clerk continued, “Same title of court and cause, count 1, verdict:  [¶] 
We, the jury, . . . having found the defendant not guilty of battery
with serious bodily injury, find the defendant, John Gilbert Benitez, guilty of
simple battery in that he did willfully and unlawfully use force and violence
upon the person of Steve Wyatt in violation of . . . section 242, a lesser
crime than that charged in count 1 of the information.”

            With
regard to count 2, the court clerk read: 
“We, the jury, in the above-entitled cause, find the defendant, John
Gilbert Benitez, guilty of assault by means likely to produce great bodily
injury on Steve Wyatt in violation of . . . section 245[, subdivision] (a)(1) .
. . .  [¶]  Further, we find true the allegation pursuant
to . . . section 12022.7[, subdivision] (a) that in the commission of the above
offense the defendant personally inflicted great bodily injury upon Steve Wyatt
not an accomplice to the . . . offense.”

            The
clerk then polled the jury and, when asked, each of the 12 jurors indicated
these were their verdicts.

            The
trial court set sentencing for June 7, 2012, remanded Benitez with no bail and
ordered a probation and sentencing report. 
At proceedings held on June 11, 2012, the trial court indicated it had
“read and considered all of the declarations filed, along with the People’s
Sentencing Memo and the Defense Statement in Mitigation, Statement in Support
of Probation, and Notice of Motion to Strike the Enhancement and
Punishment.”  The court then heard oral
argument from both the People and defense counsel.  The prosecutor asserted the crime had
involved great violence and the victim suffered great bodily harm.  In addition, Benitez “endangered the safety
of the numerous innocent bystanders.” 
However, the prosecutor indicated that “[i]n light of the
fact . . . the defendant [had no] other substantial criminal
history or felonies, the People [were] recommending [the] midterm [of six years
in state prison] instead of [the] high term . . . .”

            Defense
counsel presented to the court Ulysses Gutierrez, a minister and director of a
Los Angeles County program which provides probationers with “probation services
and/or rehabilitation services.” 
Gutierrez indicated Benitez would be eligible for the services, which
included everything from “recovery program[s]” to programs “dealing with anger
management.”  Gutierrez explained:  “Our final goal is to work with the client
and the family to develop a comprehensive developmental plan.  The plan stipulates that the client has to
report to us three times a week.  Based
on the client’s needs, that could also include drug testing through one of the
agencies in our network.”

            Benitez
then addressed the court.  He stated, in
relevant part:  “My intentions were not
to injure anybody, and I feel bad that Mr. Wyatt was injured.  I don’t know if he received the information
from the later point of the incident where I had called to make sure he was
okay and I returned back to the bar to check and confront the sheriff to make
sure everything was okay.  And I tried to
do it like a man, do the right thing. 
[¶]  And just reflecting on that,
I am hoping . . . you find it in your heart that I’m not a violent man.  I was trying to do the right thing.  And in this case the jury decided and not in
my favor, so I am here at your mercy and hoping you would see that and you
would view that and read that.”  Defense
counsel then addressed the court and indicated 
“[p]robation [was] the right thing to do.”  Counsel continued, “This man has a negligible
history of any contact with law enforcement or any criminal history.  His behavior over the years has been
unremarkable as far as the criminal justice system [is concerned].  He deserves a chance to show this was an
isolated incident . . . .”

            After
indicating this was not a “state prison” case, the trial court suspended
imposition of sentence and placed Benitez on probation for a period of five
years, one condition of which was that he serve the first 240 days in county
jail.  The court then awarded Benitez
presentence custody credit for 30 days actually served and 30 days of good
time/work time.  The trial court ordered
Benitez to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed
$200 probation revocation restitution fine (§ 1202.44), a $40 court
security assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction
assessment (Gov. Code, § 70373).  The
trial court stayed imposition of punishment on the great bodily href="http://www.sandiegohealthdirectory.com/">injury enhancement and
awarded Benitez 180 days of probation, the time to run concurrently with that
imposed for the felony, for Benitez’s conviction of the misdemeanor of simple
battery.  After setting a hearing at
which it would be determined how much restitution Benitez would be required to
pay for the victim’s injuries, the trial court informed Benitez of the
conditions of his probation, then ended the proceedings.

            Benitez
filed a timely notice of appeal on
August 2, 2012.

>CONTENTIONS

            After examination
of the record, appointed appellate counsel filed an opening brief which raised
no issues and requested this court to conduct an independent review of the
record. 

            By
notice filed April 5, 2013, the clerk of this court advised Benitez to submit
within 30 days any contentions, grounds of appeal or arguments he wished this
court to consider.  No response has been
received to date.

>REVIEW ON APPEAL

            We
have examined the entire record and are satisfied counsel has complied fully
with counsel’s responsibilities.  (>Smith v. Robbins (2000) 528 U.S. 259,
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)

DISPOSITION

            The judgment is affirmed.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

 

                                                                                    CROSKEY,
J.

 

 

            We concur:

 

 

                                    KLEIN,
P. J.

 

 

 

 

 

                                    KITCHING, J.