P. v. Bracamontes

Filed 8/23/07 P. v. Bracamontes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Bonifacio Bracamontes appeals the judgment entered after a jury convicted him on two counts of spousal abuse (Pen. Code^[1],  273.5, subd. (a)). He admitted that he had a prior strike conviction ( 1170.12) and had served a prior prison term ( 667.5, subd. (b)). He was sentenced to seven years in state prison. He contends that his due process rights were violated by the admission of bad character evidence (Evid. Code, 1101, 1102) and by the victim's statement that defense counsel was a "frickin' bottom feeder." We affirm.

FACTS AND PROCEDURAL HISTORY

On August 24, 2005, appellant's wife Leticia Speer asked him about a "hickey" she saw on his neck. In response, appellant grabbed her by the hair, hit her on the head with a pipe, and pushed her down the stairs leading to appellant's mother's apartment, all while Speer was holding their infant son. Appellant was also aware that Speer was approximately two months pregnant with twins at the time. When Speer tried to retrieve some of her personal belongings from the apartment, appellant pushed her down on a sofa, held her by the hair, and repeatedly "smack[ed]" her on her face and head. He told her to "shut the fuck up" and said she "was just a stupid bitch."

Speer fought back by hitting appellant in the chin, then left with her son and drove to the police station. Speer told Officers Brandon Murphy and Patrick Lindsay what had happened. She also stated that appellant had threatened her with a knife four days earlier. She waited to report that incident because she "was hoping it would all stop[.]" She also feared that if she moved out of appellant's mother's house and found another place to stay, appellant "would go there and bug me about it and get me kicked out of there. I had nowhere to go. It was relentless." The August 24th incident "was the last straw" because in the preceding month appellant had been physically abusing her two or three times a week. The police took pictures of her injuries, which included bruising on her jaw, knees and right arm, an abrasion on her right knee, and a bump on her head.

After Speer left the police station, she went to stay at her friend Tracy's house. The next day, appellant "showed up there crawling in the backyard" and stole her purse. Speer reported the incident to the police.

On August 26, 2005, appellant asked Speer to meet him down the street from his mother's house so he could give her money to rent an apartment. Speer agreed, and drove to the location with her son. Appellant approached Speer as she was sitting in her car and told her to drop the charges she had filed against him. When she told him no, he struck her in the face, causing a laceration above her left eye. He then took a bottle of vodka from the car, poured it on Speer, and told her "they will just think you are a drunk bitch."

Speer drove to the police station where Officers Brandon and Lindsay were again on duty. Her face was bloody, and the laceration above her left eye was observed and photographed. She also told the police what had happened. She also said that appellant had told her to say that she was on Prozac and that the charges she had filed against him were false. After Speer left the police station, she returned to her friend Tracy's house. The police attempted to contact appellant at his mother's house, but he was not there.

On August 28, 2005, appellant called Speer and asked her to help him because he was "tired of running" and wanted to go to a church men's home. Speer, with her son in tow, picked appellant up in her car. Appellant pointed a gun at Speer and told her to drive to his friends' house, then ordered her and the child into the house at gunpoint. As Speer was going into the house, she watched appellant open the hood of her car. Inside the house, they encountered two men in the living room, one of whom Speer had known for several years. Appellant pointed the gun at both of them and asked, "Which one of you motherfuckers told her I was cheating on her?"

Approximately five minutes later, when appellant was "finished with his interrogation," Speer left the house, got in her car, and attempted to drive away. The car would not start, however, because appellant had removed the distributor cap. Speer then attempted to honk the horn, but appellant had pulled out the fuse. When Speer started crying, appellant put the distributor cap back on. He told her he had pulled the fuse on the horn "so you don't try to fucking call the cops on me."

As Speer and appellant were driving away, Speer saw her friend Jimmy on a bicycle down the street. When she stopped to talk to him, appellant pointed a gun at him and said, "get the fuck out of here. This is my neighborhood." Speer continued driving, then saw Officer Lindsay following them in a patrol car. Appellant told her to drive faster, then directed her into an apartment parking lot. When she pulled into the driveway, appellant got out of the car and jumped over a fence. Speer stayed in the car, and threw a methamphetamine smoking device out the window that purportedly belonged to appellant. Officer Lindsay approached Speer and told her to take the baby, get out of the car, and stand behind a nearby wall. Speer told the officer that appellant was not holding her hostage and that he was not armed because "he told me that he was going to try to get help and go to church again. So I almost felt bad for him . . . I just told him to go to Mexico because . . . you don't want somebody to be hurt no matter how badly he hurt me. I just did the bare minimum of what I had to do to keep him away from me."

DISCUSSION

Appellant contends that his due process rights were violated when Speer testified "(1) that 'most of Ventura County' was afraid of appellant; (2) that appellant put a gun to someone's head; (3) that appellant was a member of a gang; (4) that appellant regularly used methamphetamine; and (5) that appellant threw a beer bottle at her a couple of weeks before the incidents underlying the within information." He argues that this evidence of his "bad character" should have been excluded pursuant to Evidence Code section 1002. He also identifies as reversible error Speer's remark that defense counsel was "a frickin' bottom feeder." According to appellant, Speer "reduced the trial to a farce" and "totally polluted the trial with her uncontrolled vituperative rantings and allegations against appellant." We agree with the People that appellant's claims are either waived or lack merit.

Most notably, appellant's brief is essentially devoid of any relevant legal authority in support of his claims. The failure to cite such authority amounts to a waiver of his contentions on appeal. (People v. Foote (2001) 91 Cal.App.4th Supp. 7, 12, citing People v. Stanley (1995) 10 Cal.4th 764, 793.)

In any event, appellant fails to demonstrate that any of Speer's identified comments constitute reversible error. Regarding the first comment, the court granted appellant's motion to strike and the jury was instructed to disregard it. We assume the jury heeded that instruction. (People v. Pinholster (1992) 1 Cal.4th 865, 925.)

Appellant's claim that his due process rights were violated by Speer's testimony that he pointed a gun at someone during the August 28th incident is waived because appellant did not object to that testimony in the trial court. (People v. Thomas (1992) 2 Cal.4th 489, 520.) His attack on Speer's testimony that he used methamphetamine and was involved in a gang fails for the same reason. In any event,

Speer did not state that appellant was a gang member, but rather merely said that she was afraid to identify potential witnesses because "[t]he biggest part of our, uhm, I guess you could say, . . . social circle were gang members or drug dealers."

In his reply brief, appellant asserts that we can consider any issue that affects his substantial rights even in the absence of an objection. In support of that proposition, he cites one case that has nothing to do with the issue at hand (People v. Williams (1998) 17 Cal.4th 148, 161-162), and another recognizing that the failure to object to an instruction does not necessarily waive any claim of error on appeal (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249, citing  1259).

Appellant's claim that it was prejudicial error to admit Speer's testimony that appellant had thrown a beer bottle at her is specious. Aside from the fact that the claim is waived because appellant did not object below, his argument disregards the law and the record. In his opening brief, he completely ignores Evidence Code section 1109, which provides an express exception to Evidence Code section 1101 for evidence of the defendant's commission of prior acts of domestic violence. In addressing this oversight in his reply brief, counsel asserts that the exception does not apply to the prior incident at issue because the People failed to provide the requisite notice to the defense prior to trial of its intent to present the evidence. The record plainly demonstrates, however, that discovery regarding the incident was provided to Bracamontes more than 30 days before trial, in compliance with subdivision (b) of Evidence Code section 1109.

We also reject appellant's claim that he was prejudiced by Speer's statement that defense counsel was a "frickin' bottom feeder." The jury was admonished to disregard the remark. Even if the jury failed to abide by that admonition, appellant fails to explain how the comment would have had any effect on the jury's determination whether the evidence established beyond a reasonable doubt that he was guilty of the charged crimes.

We also take issue with appellant's assertions that "[t]his was a close case" and that "it cannot be said that the jury convicted appellant because while they could not be sure of the specific charges beyond a reasonable doubt, they totally disliked both appellant and Ms. Speer, and only appellant was on trial." The case was not close. Although appellant asserts that "[t]he police to whom Ms. Speer immediately complained of being assaulted testified to seeing minimal injuries," the testifying officers said no such thing. The record also belies appellant's claim that one of the officers "contradicted Ms. Speer's claim that appellant poured vodka all over her and that she therefore stank of alcohol." The officer merely stated that he did not recall any odor of alcohol when he talked to her. Moreover, it is absurd to argue that any of Speer's comments would have led the jury to disregard any of the instructions that were given by the court, including those regarding the prosecution's burden to prove all of the elements of every charged crime beyond a reasonable doubt. Because any of the alleged errors were harmless, none would provide a basis for reversing appellant's convictions even if they had been properly raised.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

John Dobroth, Judge

Superior Court County of Ventura

______________________________

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]Further statutory references are to the Penal Code, unless otherwise noted.