P. v. Lopez

Filed 4/18/07 P. v. Lopez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.

A jury convicted Eddy Fabian Lopez of assault by means of force likely to produce great bodily injury and resisting a peace officer. Lopez appeals, contending the trial court incorrectly responded to a jury note. We find no prejudicial error warranting reversal of the conviction and affirm the judgment.

BACKGROUND

At about 9:00 a.m. on January 11, 2006, Bryant Balancier was watching television in his residence on 53rd Street in San Diego when he heard loud voices. He looked out his door and saw Donna Reiner walking and heard her screaming. A few minutes later, he heard a thud and a plea for help and saw Reiner on the ground in a fetal position and Lopez kicking her. Balancier called 911 and told the operator that Lopez was "kicking the shit out of [Reiner]." While Balancier was on the phone, he saw Lopez help Reiner off the ground and then start kicking her again. Balancier explained that the second attack occurred on Groveland Drive, an adjacent street, and that the police arrived after the couple had walked out of his view.

At the same time, Darrell Smith was cleaning out a motor home on Groveland Drive when he heard Reiner screaming and saw her running down 53rd Street with Lopez in pursuit. Smith lost sight of the couple and about four minutes later, he saw the couple walking toward him. Smith heard Lopez state "it ain't my baby," saw Reiner crouch down in a defensive position and then saw Lopez dragging Reiner by her feet. Lopez then hit Reiner in the head about three or four times and kicked her abdomen about five or six times.

As Smith approached the couple, Lopez told him "it wasn't [his] business." Eventually, Lopez threatened to break into Smith's house and rape Smith's wife when Smith stood between the couple. A few minutes later, Lopez fled as the police arrived. San Diego Police Officer Robert Wells pursued Lopez in his car and then on foot; ultimately another officer detained and arrested Lopez. Reiner, who was visibly pregnant, was taken to the hospital by ambulance for treatment.

An information was filed charging Lopez with assault by means of force likely to produce great bodily injury, resisting a peace officer and dissuading a witness. A jury found him not guilty of dissuading a witness, but guilty of the remaining charges. The trial court suspended the imposition of sentence, ordered Lopez to serve 365 days in custody and placed him on probation for five years. Lopez appeals.

DISCUSSION

1. Facts

During deliberations, the jury asked for a read back of Smith's testimony and sent a question "request[ing] clarification of 2 or 3 attacks." The trial court's minutes show that it received the notes shortly before the noon recess and that it excused the jury and notified both counsel to be present at 1:30 p.m. After the recess, counsel and Lopez were present; however, any discussions between counsel and the court were not placed on the record. The trial court had the requested testimony read back and told the jury that "[a]ll the exhibits you need to consider have already been given to you." About an hour after the read back, the jury announced that it had reached a verdict.

2. Analysis

Trial courts have a duty to help a jury understand the legal principles it is asked to apply (People v. Beardslee (1991) 53 Cal.3d 68, 97) and to attempt to clear up any instructional confusion expressed by the jury. (Pen. Code,  1138; People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other grounds in In re Steele (2004) 32 Cal.4th 682, 691.) (All undesignated statutory references are to the Penal Code.) A court's decision as to what additional explanations are required to satisfy the jury's request for information is a discretionary one that will only be reversed for manifest abuse (People v. Gonzalez, supra, 51 Cal.3d at p. 1213) and a violation of section 1138 warrants reversal only if prejudice appears. (People v. Beardslee, supra, 53 Cal.3d at p. 97.)

Lopez contends that the trial court violated section 1138 because its answer was nonresponsive and that it compounded the error by not insuring that the proceedings surrounding the jury's question and its answer were reported. The latter argument is unavailing as it was Lopez's burden to create a record adequate to show the claimed error (People v. Clifton (1969) 270 Cal.App.2d 860, 862) and he may not rely on the inadequacy of the record while failing to take steps within his power to insure that the record was adequate. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1423-1425 [defendant's claim he did not waive certain rights rejected where defendant relied on an incomplete transcript and made no effort to obtain settled or agreed statement regarding untranscribed proceedings].)

As to the former argument, the instant record shows that counsel and Lopez were present to discuss the jury's notes, but it does not reflect that defense counsel objected to the trial court's response to the jury's question. Failure to object may be construed as tacit approval of the court's response to the question (People v. Kageler (1973) 32 Cal.App.3d 738, 746) and such approval waives any claim of error. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.) Accordingly, we agree with the Attorney General's contention that Lopez has waived this issue.

Even absent waiver, Lopez's argument is not persuasive. He contends that the trial court's answer was nonresponsive and prejudicial because the jury was concerned about the number of attacks and the instructions they had been given. The jury's question, however, asked whether there were "2 or 3 attacks," not about the jury instructions. Accordingly, it is wholly speculative to conclude that the question signified jury confusion about the instructions. It is more likely that the jury was seeking assistance with deciding the facts, something the trial court could not provide.

Although Lopez argues he would have obtained a better result had the court responded differently, he does not explain how the court should have responded or how a different response would have impacted the case against him. Two eyewitnesses observed the attacks from different vantage points and described how Lopez hit Reiner, who was visibly pregnant, in the head and kicked her in the abdomen while she was on the ground. There was no question that Lopez was the assailant and his attacks were the type that could result in great bodily injury. (People v. Roberts (1981) 114 Cal.App.3d 960, 965 [kicking head and torso "of a largely defenseless man on the ground appears to us to be unmistakably an assault which a jury could reasonably find was likely to produce great bodily harm"].) There was only one assault charge and the jury was properly instructed about the unanimity requirement. (CALCRIM No. 3501.) Lopez does not claim that the instructions provided to the jury were incomplete and, absent any indication to the contrary, we must presume that the jury followed the court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) Any error in the court's response was harmless.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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