Opinion
D070930
07-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDREW Z. MOLINA, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS282091) APPEAL from a judgment of the Superior Court of San Diego County, Francis M. Devaney, Judge. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Andrew Z. Molina was charged with carjacking (Pen. Code, § 215, subd. (a); count 1); robbery (Pen. Code, § 211; count 2); assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 3); disobeying a court order (Pen. Code, § 273.6, subd. (a); count 4); corporal injury to a spouse/roommate (Pen. Code, § 273.5, subd. (a); counts 5 & 8); grand theft (Pen. Code, § 487, subd. (c); count 6); cruelty to a child by inflicting injury (Pen. Code, § 273a, subd. (b); count 7); and possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a); count 9). As to count 8, it was further alleged that defendant personally inflicted great bodily injury on the victim (Pen. Code, §§ 1192.7, subd. (c)(8) & 12022.7, subd. (e)).
Counts 1 through 4 involved an incident that took place on September 7, 2015; counts 5 through 7 involved an incident of domestic violence on August 30, 2015; and, finally, counts 8 and 9 involved a separate domestic violence incident on August 15, 2015.
Before the presentation of evidence commenced, defendant pleaded guilty to count 9, misdemeanor possession of a controlled substance. At the close of the People's evidence, the court granted defendant's motion to dismiss count 4.
The jury convicted defendant of counts 3 and 8, found him not guilty of count 6, and found the enhancement allegations related to count 8 not true. The jury could not reach a verdict on counts 1, 2, 5, and 7. The trial court subsequently granted the People's motion to dismiss counts 5 and 7. Thereafter, defendant pleaded guilty to count 2, and the court dismissed count 1 in exchange for the guilty plea. The court placed defendant on probation for three years and ordered him to serve 365 days in county jail as a condition of probation.
Defendant contends the court abused its discretion and, thus, prejudicially erred when it excluded testimony from a defense witness that she heard defendant state his then girlfriend, Asusana De La Torre, was hitting him during the August 30 domestic violence incident. Affirmed.
DISCUSSION
We view the evidence in the light most favorable to the judgment of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.) --------
De La Torre testified she and defendant started dating in February 2014; they moved into an apartment together in April of that year, where they lived with De La Torre's daughter; and they were involved in a relationship for about 16 months. On August 15, 2015, De La Torre called and informed defendant she was dropping off her daughter at De La Torre's sister's house and going to the store. Defendant in response sounded angry because, according to De La Torre, that meant she was alone at home, and defendant was "always accusing [her] of cheating" on him.
As De La Torre drove to the store, defendant called and asked to be picked up from work. When De La Torre went to meet defendant at his work, defendant was not there. After she waited for defendant and tried to call him, she sent him a text message informing him she was going to the store and asking him to meet there.
As De La Torre was waiting in her car at a stoplight, she looked in her rearview mirror and saw defendant sitting in a car directly behind her. The car was being driven by defendant's brother. De La Torre pulled into the parking lot of a convenience store. Defendant's brother followed. After stopping, defendant approached and told De La Torre to "move" because "he was going to drive." On the way home from the store, defendant accused De La Torre of lying to him because, when she initially had left for the store, he had surreptitiously watched her leave through a back gate in the apartment complex. Defendant accused De La Torre of leaving out of the back gate because she allegedly was "cheating" on him "with neighbors."
Angered that defendant had asked her to pick him up at work only to find him and his brother following her in his brother's car, and that defendant had once again accused her of cheating on him, when they arrived home De La Torre told defendant in a raised voice, " 'Why don't you just leave[?] If you don't trust me, why don't you just leave[?]' " According to De La Torre, defendant next went to the balcony. De La Torre in response took defendant's clothes and "threw" them on the balcony. Defendant came back inside holding his work boots. De La Torre again told him, " 'Just leave.' "
De La Torre testified that as they continued to argue, defendant swung his work boots at her and hit her on the side of the head, by her ear. De La Torre further testified the blow from the boots hurt her "very much." De La Torre used her hands to cover her head, in an attempt to avoid more blows from defendant. As all of this was happening and as she was attempting to fight back, she tripped over a couch armrest, felt her leg "pop," and fell to the floor. De La Torre then stated, " 'Andrew [i.e., defendant], I think I broke my leg.' And he just looked at me and he said, 'Yes, I think you broke your leg.' "
De La Torre called her sister for help. Her sister and her sister's fiancé took De La Torre to the emergency room, where she was diagnosed with an "internal derangement" of her knee and was given a leg brace and crutches. Although she was told to wear the brace for a month, De La Torre found wearing it made work difficult. De La Torre obtained a smaller brace, which she wore for about two weeks. De La Torre suffered a great deal of pain from the injury and limped around for a few weeks.
After being released by the hospital, De La Torre's sister drove De La Torre home. After De La Torre managed to climb the stairs on her "behind," she went inside and found defendant still home. At that point, De La Torre decided not to involve police. However, the following day, a friend drove De La Torre to a store so she could buy boxes to move out. De La Torre testified that she did her best to pack despite her lack of mobility from the injury; that when she laid back down to rest, defendant came into her room and said, " 'I hope you're ready for this because I'm going to give you hell all night' " and that, in response, she sent a text message to her friend asking her to call police.
On contact, De La Torre told police what had happened the day before between her and defendant. De La Torre's face then showed signs of bruising. De La Torre also had bruises on her arm and redness and irritation near her ear. The police photographed her injuries and arrested defendant. In a search incident to arrest, police found on defendant a glass pipe and a bindle containing .7 grams of methamphetamine.
De La Torre testified that despite the August 15 domestic violence incident, she and defendant continued to live in the same apartment; that after this incident, she would lock herself and her daughter in a bedroom at night, while defendant slept in another room; that defendant would text message her from the inside the apartment, but she would just not respond; and that during this period of time, she was seeking to obtain a "restraining order and move out order for him" because she feared defendant would harm her and/or her daughter.
On August 30, 2015, another domestic violence incident took place between De La Torre and defendant. When De La Torre returned home that morning, she saw the mother of defendant's children, Mary Walker, walking with two of defendant's children across the parking structure of the apartment complex toward the pool area. Feeling "disrespect[ed]" by defendant, De La Torre went upstairs, confronted him, and asked him to tell Walker to leave. Defendant's other child, two-year-old N., was inside the apartment as well.
According to De La Torre, defendant got up off the couch and, as she stood in the doorway, demanded De La Torre leave, stating this was " '[his] house.' " De La Torre testified that defendant next rushed her and "snatched" the glasses off her face; that he grabbed her arms and tried to push her out the front door; that she, in turn, demanded defendant leave the apartment; and that, in response, he continued to scream the apartment was his home and De La Torre should leave. At that point, De La Torre asked defendant how he would feel if her former boyfriend, Julio Lopez, came to the apartment, much like Walker had just done. De La Torre also told defendant she intended to call the police.
Because De La Torre and defendant in the past had argued over defendant's jealousy of Lopez, according to De La Torre defendant then went into a rage and "starting throwing hits at [her]" in the presence of his son N. De La Torre tried to protect herself, including her injured knee, while defendant continued to hit her, including in the face and head region, with both open and closed fists. All the while, defendant screamed that he "loved" her and "why" was she doing this to him. At some point, De La Torre fell to the ground, nearly hitting N. with her head. During the incident, De La Torre saw N. was "screaming" and "crying."
De La Torre testified that after she fell, she said to defendant, " 'Andrew, my leg.' ' Defendant responded, "F your leg" and then punched her in that leg twice. Defendant next grabbed De La Torre's phone inside her purse, which was hanging on her shoulder, picked up N., and started to leave the apartment. Because defendant had her phone, De La Torre grabbed defendant's shirt as he was trying to leave with N.
According to De La Torre, she continued to hold on to defendant's shirt as he went outside, down the stairs, and into the parking structure. De La Torre stated she did her best to keep up with defendant, including "hopping" down the stairway on her injured knee. In the parking structure, De La Torre saw her neighbors, who recognized something was "going on" between her and defendant. The neighbors called the police. As before, when police arrived they took photographs of injuries De La Torre allegedly sustained to her arm, face, and leg during the fight with defendant.
After the August 30 incident, defendant stayed away from the apartment for a "couple of days." However, De La Torre came home from work soon after this incident and found defendant had been inside the apartment. During that night or a night soon thereafter, De La Torre testified that she awakened and found defendant "roaming around" the apartment.
On September 7, 2015, De La Torre testified that she and her daughter went out with some of De La Torre's friends. When they returned home around 5:00 p.m., De La Torre called Lopez (her former boyfriend) and asked if they could borrow some movies for the night. Sometime around 7:00 p.m., De La Torre met Lopez on the street outside the apartment complex's gate. She testified she sat in Lopez's car for about five minutes. According to De La Torre, Lopez wanted to stay and watch a movie, but De La Torre declined because her daughter was at home. On cross-examination, De La Torre denied smoking marijuana with Lopez while they sat together in his car.
After exiting Lopez's car and entering the apartment complex to go back inside her apartment, De La Torre heard defendant yell. De La Torre testified she saw defendant rush Lopez's car and hit Lopez in the head with his fists, as Lopez sat in the driver's seat of his car. As defendant struck Lopez, De La Torre heard defendant repeatedly scream, "You're [i.e., Lopez] fucking my girl [i.e., De La Torre]"; that she, in turn, yelled at defendant to stop, but he just stared at her and then "continued what he was doing"; and that because Lopez did not know defendant, De La Torre could hear Lopez in response saying, " 'Who's your girl?' 'Who's your girl?' 'I'm nobody.' 'Who's your girl?' "
At some point, De La Torre saw Lopez get out of his car and try to defend himself. Because her daughter was alone in the apartment and because she was concerned defendant next would try and get inside the apartment, De La Torre went to be with her daughter. Before doing so, she saw Lopez was then on his back; defendant was on top of Lopez; and Lopez was trying to get defendant off of him and was more trying to defend himself from, as opposed to fight with, defendant.
Lopez testified that about 7:00 p.m. on September 7, he drove over to, and parked on the street across from, De La Torre's apartment, after she called and asked him to bring over some movies; that he and De La Torre "hung out" for about 20 minutes in his car and both smoked marijuana; and that just after she had left his car with the movies, he rolled down his car window, "lit a cigarette and put [his] hand out the window and received two fist punches in [his] face." As the man punched Lopez in the face, the man repeatedly said, " 'Are you fucking my ex-girlfriend?' " Lopez identified defendant in court as his attacker.
Lopez testified as defendant continued to throw punches, Lopez said, " 'No. I don't know who your girlfriend is. What the fuck, man.' " Lopez further testified that he did not even know who defendant was when defendant punched him in the face; that he got out of the car to defend himself; and that as he did so, defendant continued to curse at, and fight with, him. Because everything was "happen[ing] so fast," Lopez tripped and fell to the ground as he was attempting to stop defendant from getting into Lopez's car, which he had left running. After defendant got into the car, Lopez next tried to grab the key from the ignition switch. Defendant in response told Lopez, " 'I'll run you over with your own fucking car, bitch' " as defendant sped off in the car.
Lopez stated that he ran to a nearby gas station and called the police; that he sustained a fracture to his eye socket and a broken finger, which required surgery; that at the time of trial, he had not fully recovered from either injury; that police found his car about two or three days after the incident; and that his cellphone was missing from the car. Detectives subsequently showed Lopez a photographic lineup, and he picked out defendant.
Detective Chris Holt testified that he investigated the incident on September 7; that he caused a photographic lineup to be prepared that included defendant's picture; and that after he read Lopez the standard admonishment, Lopez picked out a photograph of defendant as his attacker. At the scene of the incident, police found a white cellphone. Detective Holt testified that cellphone was traced back to defendant.
DISCUSSION
Defendant contends his judgment of conviction should be reversed because the court abused its discretion when it refused to admit the proposed testimony of Walker—that she heard defendant say during the August 30 incident that De La Torre was hitting him—under the spontaneous declaration/excited utterance exception to the hearsay rule. (See People v. Gutierrez (2000) 78 Cal.App.4th 170, 177 (Gutierrez) [noting excited utterances or spontaneous declarations are an exception to the hearsay rule (Evid. Code, § 1240)].)
Before reaching this evidentiary issue, however, we note what is not at issue in this case. As noted, the record shows before the presentation of evidence began, defendant pleaded guilty to count 9, misdemeanor possession of a controlled substance, which was found on his person when he was arrested on August 16, the day after the first domestic violence incident. For this reason alone, we reject defendant's contention his judgment of conviction must be reversed, including as it pertains to count 9.
Similarly, the jury found defendant guilty on count 3, assault likely to cause great bodily injury. This incident occurred on September 7 and not on August 30. Moreover, the victim in the September 7 incident was Lopez—who, at the time, did not even know defendant—and not De La Torre. The record includes more than sufficient evidence to support defendant's conviction on count 3, as he assaulted Lopez without provocation. (See People v. Cravens (2012) 53 Cal.4th 500, 507-508 [noting under the substantial evidence standard of review, " 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt' "].)
What's more, defendant pleaded guilty to count 2, robbery, which also involved Lopez and which also took place on September 7. As such, we reject defendant's contention his judgment of conviction must be reversed, including as it pertains to counts 2 and 3.
Which leaves defendant's conviction on count 8, corporal injury to a spouse/roommate. We note this is the only count on which defendant was convicted involving De La Torre. However, count 8 stemmed from the domestic violence incident that took place on August 15, when defendant struck De La Torre with his boots and she injured her knee, and not on August 30 when De La Torre came home and found Walker and defendant's children at the apartment complex.
Defendant nonetheless argues the court's evidentiary ruling in connection with the August 30 incident prejudiced him because "this case came down mostly to credibility of the complaining witness versus the credibility of [defendant] and the admission of the excluded statement would have bolstered [defendant's] credibility before the jury and made it reasonably likely that it would have been at the very least unable to reach a verdict on the domestic violence incident for which he was convicted." We find this argument unavailing.
Here, the record shows the jury was unable to reach a verdict with respect to count 5, corporal injury to a spouse/roommate stemming from the August 30 incident, despite finding defendant guilty on count 8 for this same charge stemming from the August 15 incident. Clearly, the jury was able to make a distinction between the August 15 and August 30 domestic violence incidents and separately determine and weigh the evidence—and the credibility of the parties—from each incident accordingly. In fact, because the jury found defendant not guilty of count 6, cruelty to a child (i.e., N.) by inflicting injury, which also stemmed from the August 30 incident, defendant was never convicted of any crime from this particular incident.
We thus conclude that, even if the court erred in failing to admit Walker's testimony that she heard defendant say De La Torre was hitting him during the August 30 incident, defendant was not prejudiced by that error. (See People v. Benavides (2005) 35 Cal.4th 69, 91 (Benavides) [applying the People v. Watson (1956) 46 Cal.2d 818 (Watson) harmless error standard in finding it was not "reasonably probable the jury would have reached a different result regarding defendant's guilt had the court excluded" certain evidence]; see also Gutierrez, supra, 78 Cal.App.4th at p. 177 [noting the Watson standard applies in determining whether the admission of evidence as a "spontaneous declaration" was harmless error].)
Moreover, we separately reject defendant's argument because there is "strong evidence" of his guilt with respect to count 8 stemming from the August 15 incident. (See Benavides, supra, 35 Cal.4th at p. 91 [noting court erred in admitting evidence with slight probative value but further noting that error was harmless in light of "strong evidence" of defendant's guilt in the first degree murder of a 21-month-old girl].) The record shows that immediately before the August 15 incident, defendant had accused De La Torre of cheating on him because she had left out of the "back" gate of the apartment complex when the front gate would not open; that defendant was "always" making such accusations; that despite asking De La Torre to pick him up from work, defendant was with his brother in a car and they were following De La Torre as she drove to the store; that when De La Torre pulled over and defendant abruptly got into her car, she could then tell he was angry; that when they reached home, they argued and De La Torre demanded defendant leave; and that after De La Torre threw some of defendant's clothes onto the balcony, he came back inside and hit De La Torre in the side of the head with his work boots, causing her a great deal of pain and, ultimately, to fall and hurt her knee.
As such, we conclude defendant suffered no prejudice from any alleged error of the court in failing to admit a single statement stemming from the August 30 incident. (See Benavides, supra, 35 Cal.4th at p. 91.)
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HALLER, J. AARON, J.