P. v. Quezada
Filed 11/14/13 P. v. Quezada CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Delfino Quezada,
Defendant and Appellant.
B246275
(Los Angeles
County
Super. Ct.
No. PA074479)
APPEAL from
a judgment of the Superior Court
of
County, Beverly Reid O’Connell, Judge. Affirmed.
Renée
Paradis, under appointment by
the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant, Delfino Quezada, appeals from the judgment entered following a
court trial which resulted in his conviction of the serious felony of assault
by means of force likely to produce great bodily
subd. (a)(1)),
title="">[1]
during which he personally inflicted great bodily injury on the victim, not an
accomplice to the offense (§ 12022.7, subd. (a)), and the court’s findings
he previously had been convicted of the serious felony of assault by means of
force likely to produce great bodily injury (§ 245, subd. (a)(1)) within the
meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds.
(a)-(d)) and section 667, subdivision (a)(1), and had served a prison term for
the offense pursuant to section 667.5, subdivision (b). The trial court sentenced Quezada to 12 years
in prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The
prosecution’s case.
At
approximately 1:30 in the afternoon
on October 12, 2011, 65-year-old
Raymondo Rosas was at the J and L Shoe Store on San
Fernando Road. While Rosas was looking at shoes, 32-year-old Quezada
and a family of customers were also trying on shoes. Rosas decided to purchase a pair and, after he
did so, Quezada, who was standing behind Rosas, began to ridicule and insult
Rosas “based on the shoes†Rosas had chosen to buy.
Rosas had never seen Quezada
before. However, on the sidewalk just in
front of the store, Quezada approached Rosas from behind and, after grabbing
him by the shoulders, “pulled [him] to the [ground].†When Rosas fell, he hit his head on the sidewalk. Quezada then began to beat Rosas, hitting Rosas
with his fists on the face and nose. Although
Rosas attempted to “cover [him]self,†Quezada “tore [Rosas’s] nose up†and hit
him in the eyes until they were “[b]lack and blue.†Rosas “never threw a punch or tried to hit
[Quezada] back.â€
While Rosas
was on the ground and Quezada was still attacking him, police officers and an
ambulance arrived. After an officer
pulled Quezada off of Rosas, Rosas was transported to a hospital by the
ambulance. There, hospital personnel
examined Rosas and they determined Quezada had broken Rosas’s nose and
dislocated one of Rosas’s fingers.
name="_ftnref2" title="">[2]
San
Fernando Police Detective Irwin Rosenberg was on patrol in his uniform and a
marked car when, at approximately 1:30 p.m. on October 12, 2011, he received a
call indicating there was a fight taking place between “two male subjects†in
front of a shoe store on San Fernando Road. When the detective arrived at the store, he
saw Rosas on the ground attempting to protect himself while Quezada was
standing over Rosas, kicking him. Rosas
was “bleeding profusely from the face†in the “area of his nose.†Quezada, however, continued to attack him. When Rosenberg
heard Quezada tell Rosas “he was going to kick [Rosas’s] ass,†the detective
ordered Quezada to step back, away from Rosas. Rosenberg
then quickly approached Quezada and detained him until, approximately two or
three minutes later, other officers arrived at the scene.
2.
Defense evidence.
Quezada testified in his defense. He admitted having pled guilty to the felony
of “assault with a deadly weapon, . . . a baseball bat,†in case No. PA058268 on
May 29, 2008.
With regard to the present
incident, Quezada stated he was at J and L Shoe Store at approximately 1:30 p.m. on October 12, 2011. He had been to the store before and, on that
occasion, was exchanging some shoes.
After Quezada had been there for a time, he saw Rosas, whom he had never
seen before, enter the store. Rosas
grabbed a pair of shoes and, in Spanish, said “Punta––something about pulling a
donkey’s thing†or “dick.†Rosas had picked
up a pair of shoes and indicated he believed it had been made of “donkey dick
leather.†In response to Rosas’s remarks,
Quezada, who thought Rosas “smelled like semen,†told him, “ ‘You smell.’ †When a salesman then brought Quezada a pair of
shoes, Quezada, referring to Rosas, told the salesman, “ ‘This guy smells like
sperm, like semen. He’s a gross
man.’ â€
After
hearing these remarks, Rosas became upset and, in English, called Quezada “a
bitch.†According to Quezada, Rosas told
him, “I’m going to treat you like a bitch in prison. I’ll abuse you.†Quezada told Rosas to leave him alone, that
he had his bible with him and he did not want to have any problems. At that point, Rosas left the store.
Quezada had
exchanged his shoes, was wearing the new ones and was standing at the counter
when Rosas returned to the shoe store.
Rosas again began cursing at Quezada and calling him names. When a family then entered the store, they
turned around and left when they heard Rosas “cussing and all that.†At that point, the store owner, Emanuel
Tapia, asked Quezada and Rosas to leave.
Rosas left,
followed by Quezada. Quezada “left [his]
books and things inside [the store] because [he] was going to go back inside
and pick them up.†However as he walked
out onto the sidewalk behind Rosas, he asked Rosas what his problem was. Rosas turned around and “immediately start[ed]
to hit [Quezada] in the face†with his fist.
According to Quezada, Rosas hit him at least seven or eight times,
“punching [him] left and right.†When
Rosas then put his hands down, Quezada punched Rosas in the face, knocking him
down onto his back. Although Quezada
told Rosas not to get up and that Rosas did not know who he was “messing with,â€
Quezada did not kick Rosas.
When
Detective Rosenberg arrived, he got out of his patrol car, jumped over a brick
wall surrounding a planter, held Quezada “from the back[,] . . . put[] [him]
against [a] wall†and, although he had never seen Quezada before, told him,
“Delfino, calm down.†The detective then
had Quezada sit and lean against the planter wall until paramedics had placed
Rosas in an ambulance. By this time a
second police officer, Ayala, had arrived at the scene. Ayala asked Quezada if he needed medical
attention and Quezada told the officer he did not.
After Rosas was driven away in the
ambulance, Detective Rosenberg placed Quezada under arrest.
Quezada
indicated, at the time of trial, he was taking a number of medications
including Thorazine, Risperdal, Benadryl and Cogentin. However, on October 12, 2011, he had not
taken his medications. He was running
out and had decided not to take them that day. Quezada has “problems memorizing and speaking
sometimes†and he could not remember if, other than during their first
encounter, Rosas had hit him. Quezada
had not, however, had any contact with Rosas since the October 12th incident
other than seeing him in court.
Although he
has “short term memory loss,†Quezada remembered speaking with Detective
Rosenberg at the site of the encounter with Rosas. He also remembered speaking with another
officer at the jail. Quezada did not,
however, remember telling Detective Rosenberg he had grabbed Rosas by the
shoulder. Quezada remembered telling an
officer at the station Rosas had approached him “ ‘while [he] was at the store
and called [him] a bitch.’ †Quezada did
not remember telling the officer he “ ‘felt embarrassed because [Rosas]
called [him] a bitch,’ †but did remember that he felt humiliated. Quezada did not tell a police officer that “
‘when [Rosas] was walking out of the store, [he] approached [Rosas] from
behind, grabbed his right shoulder and pushed [Rosas] to the ground[.]’ †Quezada also never told Officer Ayala he “ ‘was
holding [Rosas’s] face against the ground and . . . was telling him to stay
down.’ †Not only did Quezada not
tell Officer Ayala he held Rosas’s face against the ground, he did not do so. Quezada also denied grabbing Rosas by the
shoulders, using both hands to push him to the ground, then punching him or
telling an officer he had done so. Quezada
remembered “punching [Rosas] one time.â€
Rosas “fell to the floor, got back up [then] fell again.â€
Quezada
indicated that on October 12, 2011, he had been recovering from a fractured
neck. On that day, he “hurt [himself]
again†and suffered “scratches and hits to the body,†including an area on his
left shoulder as well as on both cheeks. When asked about Detective Rosenberg’s
testimony in which the Detective stated he saw Rosas on the ground attempting
to defend himself while Quezada was standing “over him and kicking him and
making what appeared to be insulting or threatening statements to him,†Quezada
stated Rosenberg’s testimony had been “completely false.â€
Tapia owns
a store named Jaiden Shoes and Western Wear, which formerly had been owned by
Tapia’s uncle. The store used to be
called J and L Shoe, but Tapia had changed the name. Tapia was familiar with Quezada. He used to see Quezada assisting the owner of
a beauty salon which had been next to a second store owned by Tapia’s uncle.
At
approximately 1:30 p.m. on October 12, 2011, Tapia had been working at his San
Fernando store. Quezada came into the
store, looking for some shoes. While
Quezada was there, another customer, a man Tapia did not know, entered the
store. After Quezada had picked out a
pair of shoes and was putting them on, Tapia heard Quezada and the man who had
entered the store speaking in raised voices.
Tapia did not pay attention to what Quezada and the other man were
saying because a woman and her young daughter had come into the store and he
was assisting them. However, when his
customer appeared to become concerned about the two men, Tapia approached them
and asked them to “take it outside.â€
After Tapia had finished helping his customer purchase a pair of shoes,
he looked outside and saw several police officers. He noted that Quezada and the other man had
been “separated.â€
Tapia indicated
he had known Quezada for some time and he understood that Quezada had
“issues.†Tapia knew that, at some point
in time, Quezada had been homeless and had very little money. Quezada had asked Tapia if he could have the
shoes, but pay for them at a later date.
Since Tapia knew Quezada and considered him a friend, he had agreed to
take payment for the shoes at a later time.
Tapia
testified he had been required to close his store to come to court to
testify. The prosecutor had then told
Tapia he was entitled to witness fees, hoping the fees would help defray the
cost Tapia was incurring by closing his store.
Tapia, however, had been promised nothing else when he was told he was
required to report to court to testify.
2. Procedural
history.
Following a
preliminary hearing, an information filed on September 21, 2012 charged Quezada
with one count of the felony of 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, Raymondo Rosas, not
an accomplice to the offense (§ 12022.7, subd. (a)), which caused the offense
to be a serious felony (§ 1192.7, subd. (c)(8)) and required any time in
custody imposed for the offense to be served in state prison (§ 1170, subd.
(h)(3)). It was further alleged Quezada
had suffered a prior conviction for the serious felony of assault by means of
force likely to produce great bodily injury in case No. PA058268 (§ 245, subd.
(a)(1)), within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and that he had
served a prison term for the offense pursuant to section 667.5.
At
proceedings held on October 1, 2012, Quezada waived arraignment, pled not
guilty to the offense and denied all the additional allegations. On November 20, 2012, Quezada waived his
right to a jury trial and indicated he wished to have the court try his case. After hearing all the testimony and
considering all the evidence, on December 20, 2012 the trial court found
Quezada guilty as charged. The court
indicated, after reviewing the factors referred to in CALCRIM No. 226, it
had determined Rosas’s testimony had been corroborated by that of Detective
Rosenberg. In addition, the trial court
found Quezada had inflicted great bodily injury “based on the medical records.â€
With regard to the alleged prior
conviction, the trial court stated it had “taken judicial notice of the court’s
files and records in case PA058268, under Evidence Code section 452†and
considered Quezada’s admissions. After
doing so, the court found the People had met their burden of proving the prior
conviction and related allegations true beyond a reasonable doubt.
After
informing Quezada he had the right to be sentenced within 20 days of his
conviction, the trial court asked Quezada if he was willing to waive that right
and have his sentencing put over to January 17, 2013. Quezada responded, “Yes. Yes, Your Honor,â€
and his counsel then joined in the waiver.
The trial court set Quezada’s sentencing for January 17 and informed
counsel it was “going to want to hear about mental health treatment [at that
time].â€
At
proceedings held on January 17, 2013, defense counsel indicated he believed
imposition of a term in prison for Quezada’s prior with regard to both the
Three Strikes law and section 667.5 amounted to improper dual use of the
conviction. The trial court agreed, then
asked defense counsel to indicate what he believed the sentence should be. Counsel indicated Quezada was “in a bad
position†in that his strike was just a few years old. Counsel, however, then indicated that “the
one thing that glare[d] out at [him] in this case [was] the fact that . . .
Mr. Quezada ha[d] a mental health issue, a severe mental health issue . .
. .†Quezada had “been in a mental
health facility at each of the facilities he’[d] gone to.†After indicating the People had, at one point,
offered Quezada a term of nine years, defense counsel asserted he “hope[d] the
court [would] take into consideration [Quezada’s] mental health problems and
would confine the sentence to an area [close to the People’s] last offer . . . .â€
The
prosecutor indicated he recognized there existed mental health issues. He stated, however, “[w]hen [he went] over .
. . [Quezada’s] record, [he was] just always struck at how much violence there
[was], how much of a threat [Quezada] is to the public.†The prosecutor stated he recognized the
violence was “motivated by mental health issues, but [also recognized] it just
keeps happening.†Under these
circumstances, the prosecutor indicated, in order to properly protect the
public, a term of at least 14 years in prison was justified.
When
Quezada personally addressed the trial court, he indicated he believed Rosas
had been the aggressor in this incident.
Quezada continued: “And I have in
my past been beaten. I have been, you
know, my family beat me a lot, and I am schizophrenic where if I feel like
somebody is going to attack me, I defend myself. [¶]
And I don’t know, it’s––people always picking on me, and sometimes I
don’t even know what to do, but I don’t know how to explain myself.â€
The trial
court sentenced Quezada to the low term of two years in prison for the
substantive offense “based upon the mental health issues.†The court then doubled the term to four years
pursuant to the Three Strikes law, imposed a term of three years for the
infliction of great bodily injury and a term of five years for the prior serious
felony alleged pursuant to section 667, subdivision (a). In total, the court sentenced Quezada to 12
years in prison. The trial court then recommended
Quezada “be housed in a mental health treatment facility where [he could
receive] appropriate mental health treatment.â€
The trial court awarded Quezada presentence
custody credit for 233 days actually served and 35 days of good time/work time,
for a total of 268 days. In addition,
Quezada was entitled to credit for 231 days spent in Patton State Hospital, for
presentence custody credit totaling 499 days.
The trial court then imposed a $240 restitution fine (§ 1202.4,
subd. (b)), a suspended $240 parole revocation restitution fine (§ 1202.45), a
$40 court security fee (§ 1465.8, subd. (a)) and a $30 criminal conviction fee
(Gov. Code, § 70373). With regard
to restitution, Quezada waived his appearance and indicated his counsel could
represent him at any hearing held on the matter.
Quezada filed a timely
January 17, 2013.
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 September 20, 2013, the clerk of this court advised Quezada to submit
within 30 days any contentions, grounds of appeal or arguments he wished this
court to consider. On October 31, 2013,
Quezada filed with the court a document in which he appears to be asserting he
did not receive a fair trial. A review
of the record indicates otherwise.
Quezada’s counsel presented a full and comprehensive defense to the
alleged charges and Quezada was properly sentenced.
REVIEW ON APPEAL
We have
examined the entire record and are satisfied counsel had complied fully with
counsel’s responsibilities. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
DISPOSITION
The
judgment is affirmed.
KLEIN,
P. J.
We concur:
CROSKEY,
J.
ALDRICH,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise indicated.
medical records from October 12, 2011 were admitted into evidence. The records indicated Rosas had been admitted
to Providence Holy Cross Medical Center where he was treated for a “left
orbital fracture,†a “nasal fracture,†“blunt head trauma,†and a “right 5th
finger dislocation with reduction.†In
addition, Rosas had a “left eyebrow laceration†which was “irrigated with
normal saline,†then closed with “Dermabond.â€
Rosas was prescribed Vicodin for pain and Keflex “to prophylax against
infection.†It was recommended he “have
a wound check in 48 hours†and “follow up with an orthopedic and ENT
specialist at LA County USC†Medical Center in 48 hours. If he suffered new or “worsening†symptoms
before that time, he was to return to the Holy Cross Medical Center emergency
room.
