P. v. Ochoa
Filed 8/7/13 P. v. Ochoa CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
FREDDY N. OCHOA,
Defendant and
Appellant.
2d Crim. No.
B241804
(Super. Ct.
No. BA393480-01)
(Los
Angeles County)
Freddy N. Ochoa appeals
from the judgment following his conviction by jury of misdemeanor
battery resulting in serious bodily injury.
(Pen. Code, §§ 242, 243, subd. (d).)
means of force likely to produce great bodily
county jail. Appellant's sole contention
on appeal is that the trial court erred by admitting prior crime evidence. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
The Ochoa family owned a
five-bedroom house in Los Angeles. In 2012, appellant lived there with his
brothers, Bobby Ochoa, and Danny Ochoa, their 89-year-old father, Joe Ochoa,
Danny's "common-law" wife, Yvonne Reyes, and several younger family
members.
On the evening of January 31, 2012, Reyes, Danny, Bobby
and Joe were in the living room. Reyes
and Danny were drinking beer. Sometime
after 9:00 p.m., appellant entered
the living room. He and Danny started
arguing about money. Reyes went into the
kitchen. Danny joined her there and
asked for money. She gave him $20. Danny gave the money to appellant, and
continued arguing with him about money.
Reyes approached Danny
and appellant and yelled that she wanted her money back. Appellant punched Reyes in the face. She fell backward and hit her head on a
cabinet. Her mouth and nose were
bleeding. Reyes yelled at appellant to
stop, and tried to put a chair between them.
Appellant again punched Reyes in the face. She called 911. Reyes went to the emergency room. Her injuries included a cut lip, a swollen
nose, and a broken tooth.
Reyes and Danny each had
a prior felony conviction of petty theft with a prior conviction. Their respective weights are 160 and 145
pounds. Appellant weighs between 450 and
500 pounds.
In 2001, Reyes's adult
son, Rudy, bought milk at the market.
Appellant drank some of that milk.
Reyes confronted him because he drank it without paying for it. Appellant went to another room, returned with
a screwdriver, and started stabbing Rudy's legs. When Reyes tried to pull him away from Rudy,
appellant scratched her with the screwdriver.
Rudy's legs were bleeding.
Someone called the police, who arrived and arrested appellant.
In 2005, appellant asked
Bobby to lend him money. Bobby
refused. The next day, Bobby was in the
kitchen when appellant entered and started to fight. Thinking that appellant was
"playing," Bobby fought back.
After the fight, Bobby realized that appellant had poked his neck eight
times with "an ice pick," or "an electrical cord as sharp as an
ice pick." Bobby weighed about 145
pounds in 2005.
In 2009, appellant and
Danny were fighting in the driveway.
While Danny was on his knees, trying to stand, appellant kicked his ribs
several times. Reyes managed to pull appellant away briefly. Danny's rib injuries made it impossible for
him to stand. An ambulance transported
him to the emergency room.
Appellant testified that
Danny barged into his room at about 8:30 p.m.
on January 31, 2012. Danny was drunk and claimed that appellant
owed him money. Appellant tried to hide
in the bathroom, where he found Reyes trying to "catch a vein" with a
syringe and inject heroin. She stabbed
appellant's hand with the syringe needle, which angered him because she had
Hepatitits C. Appellant tried to leave
the house, but Reyes locked the front door and said, "You're not going
nowhere until you pay Danny his money."
Reyes pulled a knife from her purse and stuck the knuckle of his left
index finger.
Appellant went to the
kitchen to leave through the back door.
While trying to get through the kitchen, appellant "hit Danny[,]
and he fell on the floor." Danny
was screaming, and appellant picked him up.
While Danny was punching appellant, Joe (their elderly father) tried to
pull Danny away. Bobby also entered the
kitchen. During the struggle, Reyes
jumped on appellant's back and "fractured it." He "pushed her hard," with his
arm. He "wanted her off." She turned around, slipped, and her mouth hit
the counter. Reyes then stood, knife in
hand, charged appellant, and said, "You mother fucker. I'm going to kill you." Appellant pushed her away with his hand. He was worried about his father, not
himself. He did not punch Reyes.
Appellant admitted he
was convicted of assaulting Danny in 2009, "joyriding" in 2003, and
receiving stolen property in 1999.
During cross examination he testified that in 2009, he had to defend
himself because Danny attacked him; that Bobby attacked him 2005, and Reyes
attacked him in 2012.
Joe Ochoa testified that
on the night of appellant's arrest, Danny was cussing and wanted to fight
appellant "over $20 or something."
Joe tried to hold Danny to stop his fighting. Danny fell down. As appellant bent over to pick Danny up,
Reyes pushed or hit appellant "[r]ight in the back." Danny and Reyes were both "pretty
drunk." Appellant hit Reyes with
his elbow. Reyes "was stumbling
down and hit herself on the counter."
When the police arrived, Joe told them that "Danny started the
fight."
DISCUSSION
Appellant contends that
the trial court abused its discretion by failing to exclude the prior crimes
evidence pursuant to Evidence Code sections 1101, subdivision (b), and
352. We disagree.
"We review for
abuse of discretion a trial court's rulings on relevance and admission or
exclusion of evidence under Evidence Code sections 1101 and 352. [Citations.]" (People
v. Cole (2004) 33 Cal.4th 1158, 1195.)
Evidence that a defendant committed crimes other than those currently
charged is not admissible to prove criminal disposition or bad character. (Evid. Code, § 1101, subd. (a);
1, 14.) Evidence Code section 1101,
subdivision ( b), however, provides that prior crimes evidence may be received
to prove defendant's motive, identity, intent, the existence of a common plan
or design, or the absence of mistake or accident. (People
v. Ewoldt (1994) 7 Cal.4th 380, 393 & fn. 1.) "Other crimes evidence is admissible
"'"where the proof of defendant's intent is ambiguous, as when he
admits the acts and denies the necessary intent because of mistake or accident."' [Citation.]" (People
v. Miller (2000) 81 Cal.App.4th 1427, 1447-1448.)
Even if evidence of an
uncharged crime is admissible under Evidence Code section 1101, subdivision
(b), the evidence may be excluded under Evidence Code section 352 if its
probative value is substantially outweighed by the probability its admission
would unfairly prejudice the defendant, mislead the jury, or confuse the
issues. (People v. Balcom (1994) 7
Cal.4th 414, 426-427.)
While hearing the motion
to exclude the prior crimes evidence, the trial court determined that the
defense intended to show that appellant did not hit Reyes, and that she
attacked him. The court then ruled that
the prior crimes were "relevant," having impliedly found that the
defense would argue the charged crimes were accidental or that defendant acted
in self defense. It also concluded that the prior crimes
evidence was admissible, because its probative value outweighed its prejudicial
impact. While discussing jury
instructions, the court indicated it would use CALCRIM No. 375 to allow the
jury to consider whether defendant acted as "the result of a mistake,
accident or [to assess] the reasonableness of . . . a
self-defense theory." Defense counsel
conceded that the prior crimes evidence might be relevant to show a "lack
of accident." During closing
argument, counsel repeatedly argued that the prosecution had to prove that
appellant "did not act in his own self-defense or defense of his
father."
The trial court
correctly ruled that the prior crimes evidence was relevant to determine
whether appellant acted with the requisite intent, or hit Reyes by accident or
while defending himself or another.
"Seldom will evidence of a defendant's prior criminal conduct be
ruled inadmissible when it is the primary basis for establishing a crucial
element of the charged offense." (
962, 967.)
We also reject
appellant's related claim that the trial court abused its discretion by
admitting the prior crimes evidence because its prejudicial impact outweighed
its probative value. (Evid. Code, §
352.) As we have already explained, the
prior crimes evidence was relevant to intent.
That evidence was not unduly prejudicial, when compared with the charged
crimes. In each instance, appellant
attacked and injured a family member.
While the record does not disclose Rudy's weight, it shows that
appellant far outweighed Reyes and prior crime victims Bobby and Danny. Moreover, "[t]he prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence." (
638.)
Further, the court
instructed the jury that it could consider the prior crimes evidence for the
limited purposes of "deciding whether or not the defendant's alleged
actions were the result of a mistake or accident[,] or as to the reasonableness
of any defense relating to defense of others that the defendant acted with the
requisite intent to commit the charged offenses." During closing arguments, the prosecutor and
defense counsel reminded jurors that the prior crimes evidence could be
considered only for such limited purposes.
The court also instructed the jury that it was not to "conclude
from [the prior crimes] evidence that the defendant has a bad character or is
disposed to commit crime." We
presume that the jury understood and followed the court's instructions. (People
v. Gray (2005) 37 Cal.4th 168, 231.)
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
John
S. Fisher, Judge
Superior
Court County of Los Angeles
______________________________
Stephen Borgo, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, James William Bilderback II,
Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General,
for Plaintiff and Respondent.
otherwise stated.
