P. v. Maldonado

 

 

 

 

 

 

 

 

 

Filed 6/21/13  P. v. Maldonado CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   ADRIAN MALDONADO,         Defendant and Appellant.

G046918            (Super. Ct. No. 10CF2752)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, John Conley, Judge. 
Affirmed.

                        Jean Matulis, under
appointment by 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, Lilia E. Garcia and Lynne G. McGinnis,
Deputy Attorneys General, for Plaintiff and Respondent.

*               
*                *

A jury convicted defendant
Adrian Maldonado of aggravated assault
(Pen. Code, § 245, subd. (a)(1)) and possession of a deadly weapon, to
wit, brass knuckles (Pen. Code, § 12020, subd. (a)(1)).  The jury also found true a great bodily
injury allegation (Pen. Code, § 12022.7, subd. (a)) accompanying count 1.
The trial court sentenced defendant to 14 years in state prison, a sentence
based in part on defendant’s criminal history. 
On appeal, defendant contends the court prejudicially erred by admitting
evidence under Evidence Code section 1103 (section 1103) of defendant’s past
violent conduct.  Defendant also asserts
the court abused its discretion by declining to dismiss a prior strike for
purposes of sentencing.  We reject both
claims and affirm the judgment.

 

FACTS

 

On
June 27, 2010, Benjamin Bud
accompanied his girlfriend to a convenience store for the purpose of renting a
video.  Bud smoked a cigarette while his
girlfriend perused the video selections. 
Out of nowhere, Bud was struck in the side of his face by what felt like
a baseball bat.  When Bud looked up,
defendant was standing above him with his fist cocked, wearing brass
knuckles.  Bud knew defendant through
mutual friends.  Defendant said, “Shoot
at me again, see what happens.”  Bud had
no idea what defendant was talking about. 
Defendant then left the scene, later denying to police that he knew Bud
at all before claiming Bud had previously shot at him.  Bud suffered severe injuries to his face,
including a fracture on his upper jaw, two separate nasal bone fractures, and a
caved-in nose.

 

DISCUSSION

 

Admission
of Defendant’s Past Violent Incidents

Defendant’s
theory of the case was that his actions amounted to self-defense.  Defendant testified that Bud, while engaged
in an oral confrontation with defendant outside the convenience store, put his
fists up and “made a flinch” toward defendant. 
Defendant denies using brass knuckles and claims Bud’s injuries were the
result of one regular punch.

Before
trial, the parties disputed the admissibility of potential testimony pertaining
to an incident that occurred earlier in June 2010 (about two to three weeks
prior to the night defendant punched Bud). 
At the pretrial hearing, defense counsel stated this evidence would
“establish that Mr. Bud, despite his status as the victim in this case, does
have a little bit of a tendency to get hotheaded.”  The court ruled such evidence fell under
section 1103,  which provides in relevant
part that “[i]n a criminal action, evidence of the character or a trait of
character (in the form of an opinion, evidence of reputation, or evidence of
specific instances of conduct) of the victim of the crime for which the
defendant is being prosecuted is not made inadmissible by [Evidence Code]
Section 1101 if the evidence is: 
[¶]  (1) Offered by the defendant
to prove conduct of the victim in conformity with the character or trait of
character.”  (§ 1103, subd.
(a).) 

Pursuant
to the court’s ruling, defendant testified that during this earlier incident,
Bud approached defendant holding a BB gun. 
Defendant further testified that Bud told defendant (using foul language
and a threatening tone) to leave and pointed the BB gun at defendant.  Defendant heard several BBs whizzing by his
head.  Bud admitted he was shooting a BB
gun on the night in question, but testified he was not involved in a verbal
confrontation with defendant and did not shoot the BB gun in defendant’s
direction.

In
light of the court’s ruling allowing evidence of Bud’s conduct during the prior
BB gun incident, the prosecutor argued he was entitled to introduce evidence of
defendant’s prior violent conduct. 
“[C]haracter evidence is generally inadmissible to prove a person acted
in conformity with it on a given occasion.” 
(People v. Myers (2007) 148
Cal.App.4th 546, 552.)  But pursuant
to section 1103, subdivision (b), “evidence of the defendant’s character for
violence or trait of character for violence (in the form of an opinion,
evidence of reputation, or evidence of specific instances of conduct) is not
made inadmissible by [Evidence Code] Section 1101 if the evidence is offered by
the prosecution to prove conduct of the defendant in conformity with the
character or trait of character and is offered after evidence that the victim
had a character for violence or a trait of character tending to show violence
has been adduced by the defendant under paragraph (1) of subdivision (a).”  “In other words, if . . . a defendant offers
evidence to establish that the victim was a violent person, thereby inviting
the jury to infer that the victim acted violently during the events in
question, then the prosecution is permitted to introduce evidence demonstrating
that (1) the victim was not a violent person and (2) the defendant was a
violent person, from which the jury might infer it was the defendant who acted
violently.”  (People v. Fuiava (2012) 53 Cal.4th 622, 696.)

The
court authorized the prosecutor to elicit testimony concerning a prior incident
in which defendant fought with a neighbor, which resulted in a battery
conviction in 2002, and a prior criminal
threat charge, to which defendant pleaded guilty in 2008.href="#_ftn1" name="_ftnref1" title="">[1]  Defendant testified  about the 2002 incident (mostly on direct
examination, presumably to preempt cross-examination), explaining he had
suffered a battery conviction after hitting a neighbor who had struck defendant
first after the two had argued.  On
cross-examination, defendant agreed that he thinks this prior incident was a
case of self-defense, despite his conviction for battery.  In closing argument, the prosecutor argued
defendant’s prior convictions indicated defendant had a “character trait for
violence.”

The
essence of defendant’s argument on appeal is that his BB gun incident testimony
was not really section 1103, subdivision (a), evidence.  Instead, the BB gun incident testimony was
directly relevant to defendant’s state of mind on June 27 and the objective
reasonableness of defendant’s subjective belief that he needed to defend
himself.  (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [For use of
force “to be in self-defense, the defendant must actually and reasonably
believe in the need to defend”]; People
v. Minifie (1996) 13 Cal.4th 1055, 1060 [“A defendant charged with
assaultive crimes who claims self-defense may present evidence that the alleged
victim had previously threatened him”]; People
v. Garvin (2003) 110 Cal.App.4th 484, 488 [upon request, jury must be
instructed with regard to “the effect of the victim’s antecedent threats or
assaults against the defendant on the reasonableness of defendant’s
conduct”].) 

If
the BB gun incident was not admitted under section 1103, subdivision (a),
defendant contends there was no justification for allowing evidence of past
instances of violence involving defendant. 
(§ 1103, subd. (b) [such evidence may be “offered after evidence”
pertaining to victim’s character or trait evidence].)  Clearly, evidence concerning Bud’s actions at
the convenience store on June 27 would not be character evidence.  (See People
v. Myers, supra, 148
Cal.App.4th at p. 552 [defendant’s testimony about police “officer’s
aggressive conduct at the time of the incident did not constitute character
evidence for the purposes of” § 1103].) 
In defendant’s view, genuine section 1103, subdivision (a) evidence of
past conduct bearing on the victim’s character for violence would only include
incidents not involving defendant (e.g., unbeknownst to defendant, Bud shot
John Smith one year ago).

Of
course, this is not what defendant argued at trial.  Defense counsel agreed with the court that
the issue should be analyzed under section 1103.  Defense counsel represented to the court that
the importance of the BB gun incident was to establish Bud had “a tendency to
get hotheaded” and “hostile.”  Defense
counsel stated during closing argument that Bud “is the kind of guy that after
a couple of drinks at a barbeque maybe his personality changes.  Maybe he all of a sudden turns into Mr. Tough
Guy.  It’s a possibility. . . .  And he is not going to be the one that backs
down, so maybe in front of his friends he took that BB gun as to show everyone
hey, watch what I’m going to do.  I’m a
tough guy.”  Defense counsel opposed the
admission of evidence pertaining to defendant’s past violent conduct based on
claims that two of the incidents were too remote in time to be probative and
that other conduct led only to misdemeanors, not that section 1103 was
inapplicable.  Defense counsel conceded
the 2008 incident “for criminal threats . . . probably would fall within the
purview of [section] 1103.” 

It
is true defense counsel also
referenced the effect of the BB gun incident on defendant’s state of mind and
the circumstances in which defendant acted. 
During closing argument, defense counsel told the jury that if it found
defendant knew about Bud’s past threats or violent conduct, it could “consider
that information in deciding whether the defendant’s conduct and beliefs were
reasonable.”  But the court did not limit
the admissibility of the BB gun incident evidence to determining defendant’s
actual and reasonable belief in the need to punch Bud in the face on June 27, 2010.  Defendant was entitled to, and did, argue
that Bud is a hostile, hotheaded person who, in keeping with his character for
violence, instigated the June 27, 2010
incident.

As
an initial matter, defendant forfeited his argument by not raising it
below.  (People v. Demetrulias (2006) 39 Cal.4th 1, 19-20; Evid. Code,
§ 353, subd. (a).)  Even were the
issue not forfeited, we would conclude the court did not abuse its discretion.  (See People
v. Gutierrez (2009) 45 Cal.4th 789, 827-828 [evidentiary rulings under
§ 1103 reviewed for abuse of discretion].) 
The BB gun incident could be, and was, used for a dual purpose.  On the one hand, the BB gun incident was
relevant to defendant’s subjective belief (and the objective reasonableness of
his belief) in the need for self-defense on the night he viciously punched
Bud.  On the other hand, the BB gun
incident was relevant to an inference that Bud had a violent character, an
inference that could affect the jury’s view of what actually occurred outside
the convenience store on June 27, 2010 (as opposed to what defendant perceived
subjectively or what was objectively reasonable for him to believe).  By eliciting evidence of Bud’s violent
character under section 1103, subdivision (a), defendant opened the door to
evidence of his own violent character under section 1103, subdivision (b).

Finally,
we note that any potential error by the court under section 1103 was harmless
because “[m]ost, if not all, of the evidence in question here would have been
independently admissible to test” defendant’s testimony that he is “really not”
a violent person despite the injuries suffered by Bud.  (People
v. Blanco (1992) 10 Cal.App.4th 1167, 1176.)

  

>Refusal to Strike a Prior Strike at
Sentencing

The
court sentenced defendant to 14 years in prison.  This total prison term was comprised of
several constituent parts:  the midterm
of three years for Count 1 (Pen. Code, § 245, subd. (a)(1)), doubled to six
years pursuant to the Three Strikes law (Pen. Code, § 1170.12, subd.
(c)(1)); a great bodily injury enhancement of three years (Pen. Code,
§ 12022.7, subd. (a)); and an additional five years for defendant’s prior
serious felony conviction (Pen. Code, § 667, subd. (a)(1)).

Defendant
contends the court erred by refusing to dismiss a prior strike (see >People v. Superior Court (>Romero) (1996) 13 Cal.4th 497,
529-531) and reduce his sentence accordingly. 
Penal Code section 1385, subdivision (a), states in relevant part that a
judge “may . . . in furtherance of justice, order an action to be
dismissed.”  “[P]ursuant to Penal Code
section 1385[, subdivision ](a), a trial court may strike an allegation or
vacate a finding under the so-called ‘Three Strikes’ law [citation] that a
defendant has previously been convicted of a ‘serious’ and/or ‘violent’ felony
as defined therein.”  (>People v. Williams (1998) 17 Cal.4th
148, 151-152, fn. omitted.)  In
determining whether to exercise its discretion to do so, a court “must consider
whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the
[Three Strikes law] scheme’s spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious
and/or violent felonies.”  (>Id. at p. 161.)

During
an earlier proceeding, the court struck one of two prior strikes against
defendant, which both apparently pertained to burglary convictions arising out
of a single sequence of events involving defendant entering his stepfather’s
bedroom.  At the sentencing hearing,
however, the court did not strike the remaining strike.  Along with citing the benefit defendant had
already received in this case in a prior proceeding (i.e., one strike being
dismissed), the court justified its overall sentencing approach to the case:  “The way the court sees it, this is not the
victim picking a fight.  The victim is
distracted looking at his girlfriend, trying to get a DVD . . . and wham, from
the side, the defendant with brass knuckles does a devastating hit on him.  It was a sucker punch all the way.  [¶] 
Defendant used a weapon.  I’m
looking at the factors under aggravation. 
[Citation.]  Used a weapon, victim
was vulnerable, there’s a danger to society because of the violence.  As the probation department said, there was
no real provocation. . . .  [¶]  Defendant poses a danger to society.  His convictions are increasingly
serious.  And he served a prior state
prison term, which the court is striking. 
[¶]  So, I think it’s fairly
lenient to call this a midterm.  And the
court would exercise its leniency that way.”

We
review the trial court’s determination not to strike or vacate a prior serious
and/or violent felony conviction allegation or finding “under the deferential
abuse of discretion standard . . . .”  (People
v. Carmony (2004) 33 Cal.4th 367, 371.) 
Our review of the record suggests the court was aware of its discretion
to dismiss the remaining strike, the court did not consider any impermissible
factors in denying dismissal, and the ultimate result of the sentencing
process was not “‘an “arbitrary, capricious, or patently absurd” result’
under the specific facts” of this case. 
(Id. at p. 378.)  Thus, the court was well within its
discretion.

 

DISPOSITION

 

The
judgment is affirmed.

 

 

 

                                                                                    IKOLA,
J.

 

WE CONCUR:

 

 

 

FYBEL, ACTING
P. J.

 

 

 

THOMPSON, J.