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(Super. Ct. No. SCD223098)
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.
Raul Martinez appeals from a judgment convicting him of assault by means of force likely to produce great bodily injury, with personal infliction of great bodily injury and gang enhancements. He argues the judgment must be reversed because the trial court erred by (1) allowing the victim to testify about a prior beating that had occurred at the park where the charged assault occurred; (2) failing to sua sponte instruct the jury on an aiding and abetting theory of culpability; and (3) permitting the prosecutor to cross- examine a defense witness about the witness's prior juvenile adjudication. We find no reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The events giving rise to the charges in this case occurred at a park where defendant and other members of defendant's gang (the Lomas gang) assaulted two individuals, Juan Flores and Juan Ruiz. Flores was attacked first, and Ruiz was attacked when he attempted to stop the assault on Flores. Ruiz is the victim in the case before us.
On the evening of July 3, 2009, Ruiz was at the park standing near his car watching the end of a soccer game. A group of about 12 to 15 males, who were Ruiz's soccer friends, were sitting at a nearby table. Ruiz testified that as he was preparing to leave the park, two men arrived at the table and started beating Ruiz's friend, Flores. During the beating, Flores was on the ground and was trying to protect himself with his arms and feet. At trial, Ruiz identified defendant and Mark Thomas as the persons who were attacking Flores. Ruiz frequently went to the park to watch or play soccer, and he had seen defendant and Thomas at the park on other occasions. Defendant and Thomas are Lomas gang members, whereas Ruiz is not a gang member.
The soccer friends who were at the table with Flores moved away and did not try to intervene in the attack on Flores. Ruiz and a couple of other people went to try to stop the attack, with Ruiz saying, " 'Enough. Enough. You've beaten him already.' " Thomas punched Ruiz in the neck and sprayed him in the face with a spray can. Defendant and Thomas both started attacking Ruiz, and Ruiz threw a few blows to defend himself. As Ruiz tried to back away, defendant grabbed Ruiz by his neck. Another man who played soccer at the park came to try to help Ruiz, grabbing defendant by the neck.
Ruiz did not see how the assault on Flores started. Flores testified that he saw a group of about six people fighting, and he and several others went to break up the fight. Flores stated that he merely moved his arms to try to separate the fighting people; he did not throw any blows; he fell to the ground and was hit by several blows; Ruiz and others came to help him; and he was able to run away. At trial, Flores claimed he did not see his attackers and did not see the attack on Ruiz. However, a detective testified that Flores told him that defendant and Thomas attacked him, and then defendant, Thomas, and their associates attacked Ruiz when Ruiz came to defend Flores. At the time of the fight, defendant was 23 years old; Ruiz (age 39) and Flores (age 43) were significantly older.
Defendant was joined by a group of about eight or 10 other males, who also started beating Ruiz. Ruiz fell to the ground, where he was kicked and punched all over his body. Ruiz got up and ran towards a tree, saying, " 'No, I don't want anything. It's enough.' " Ruiz fell again, and the group continued beating him. At this point, Ruiz did not see defendant with the group.
Ruiz got up and ran towards the street, where a woman he knew stopped her minivan and told him to get in. The door to the minivan was stuck, and as Ruiz tried to open it, defendant came and hit Ruiz on the shoulder with a metal scooter. This blow did not injure Ruiz because the scooter was in an open position and defendant was not able to hit him hard. However, as Ruiz continued to try to open the car door, defendant folded the scooter and swung it towards Ruiz's head. Ruiz asked him, " 'Why are you doing this? Are you trying to kill me or what?' " Defendant swung hard and hit Ruiz two or three more times with a sharp edge of the scooter. Ruiz used his arm to shield himself, and was repeatedly hit on his arm just below his elbow. Defendant "mock[ed]" him, saying " 'ha-ha.' " Ruiz felt a "very strong pain" and could not move his arm. When defendant noticed that Ruiz's arm was broken, defendant left.
Ruiz testified there were no other people around during the scooter attack, and only children saw the attack. None of his friends were nearby, and the others in the group who had attacked him were back in the area where the fight had started.
As a result of the group beating, Ruiz suffered bruising, and two teeth and a dental plate were knocked out of his mouth. As a result of the scooter attack, Ruiz sustained a long, wide cut and two fractures to his arm. He underwent two surgeries to repair his arm (including stitches and installation of a plate and screws), had to wear a cast, and missed several months of work.
The prosecution's gang expert (Detective Nestor Hernandez) testified that the Lomas gang claimed the area where the assault occurred; there was a substantial amount of Lomas gang graffiti at the park; and there had been frequent contacts with Lomas gang members at the park. Detective Hernandez explained that the gang maintains control over its claimed territory by creating an atmosphere of fear and intimidation through assaults, robberies, and threats to people in the area. Gang members are expected to "put in work" for the gang by intimidating people in the gang's turf, and a gang member gains higher status by committing a violent crime. If one gang member becomes involved in a fight, all other members who are present are required to join the fight.
The police had observed defendant's gang moniker "tagg[ed]" at several areas in the park, and on repeated occasions had contacted defendant in association with other Lomas gang members at the park and other locations. Detective Hernandez testified that when a nongang member intervenes in an assault being committed by gang members in gang territory, the gang members are expected to assault the nongang member and intimidate any witnesses who are present. Beating a nongang member "on a moment's notice" benefits the gang by promoting the status of the gang and the gang members involved in the fight, by intimidating victims and witnesses so they will not cooperate with the police, and by protecting the gang's territory.
Several witnesses who were at the park at the time of the altercation testified on behalf of the defense, including defendant's teenage step-daughter and two men who knew or recognized defendant (William De Rosa and Jesus Rebolledo). These witnesses testified that they saw a group of men fighting, including defendant. None of them saw how the fight started. Defendant's step-daughter and De Rosa testified that the fight appeared to be mutual combat, and they did not see anything occur with a scooter. The witnesses described seeing defendant throwing and receiving punches, and also lying on the ground being hit and kicked and trying to defend himself. Defendant's step-daughter testified that she saw the fight until it ended, and when the fight was over defendant came to their car where she was waiting. During the fight, Rebolledo saw one of the men swing with an open metal scooter at defendant. The man missed defendant and hit Ruiz in the arm with the wheels of the scooter. Ruiz did not appear to be injured from the impact of the scooter.
Jury Verdict and Sentence
The jury convicted defendant of assault by means of force likely to produce great bodily injury, with enhancement findings that he personally inflicted great bodily injury and acted to promote a gang. He was sentenced to 16 years in prison.
I. Admission of Ruiz's Testimony About a Prior Beating at the Park Defendant argues the trial court abused its discretion in allowing Ruiz to testify, over defense objection, about a prior beating that had occurred at the park. He asserts the evidence should have been excluded under Evidence Code section 352 because it had minimal probative value and was highly prejudicial.
Ruiz's testimony about the prior beating at the park was elicited by the prosecutor following cross-examination of Ruiz. When questioning Ruiz on redirect examination, the prosecutor noted that Ruiz had testified that his friends seated at the table did not intervene when Flores was attacked and that everyone was afraid of being beaten up. The prosecutor asked why everyone was afraid of being beaten up, and Ruiz answered that "some people act that way." The prosecutor then asked whether Ruiz had "seen a friend being beat up and put in a coma within the year at the park?" Defense counsel objected to this testimony.
During a discussion outside the presence of the jury, defense counsel questioned the relevancy of the evidence, and asserted the evidence was unduly prejudicial if it suggested to the jury that the Lomas gang had committed a beating that put a person in a coma. The prosecutor argued the testimony was relevant to show Ruiz's and his companion's reluctance to intervene and fear of retaliation. The trial court agreed the evidence was relevant. However, recognizing the potential for prejudice, the court instructed the prosecutor not to refer to a coma but to describe the incident merely as a severe beating. The court concluded that if properly limited, the testimony was not unduly prejudicial.
Continuing with redirect examination, the prosecutor asked Ruiz if he told Detective Hernandez "that a friend of yours was knocked out in the park and beaten when he was on the ground? He had to be taken to the hospital in an ambulance[?]" Ruiz answered yes, stating that (about one year before he was attacked) he "saw that a lot of people beat [the friend] up and left him [lying] there." The prosecutor asked if that was one of the reasons he was afraid of people at the park. Ruiz answered, "I don't get involved in anything. That day was my mistake, having gone there to tell them to stop it." The prosecutor asked if Ruiz had told Detective Hernandez that the prior beating was one of the reasons he was concerned about talking to the police because of his fear of retaliation. Ruiz answered, "Yes."
Relevant evidence means evidence that has any tendency to prove or disprove any disputed material fact. (People v. Sisneros (2009) 174 Cal.App.4th 142, 151.) The trial court has broad discretion to determine whether evidence is relevant, and whether the evidence should be excluded under Evidence Code section 352 because its probative value is outweighed by concerns of undue prejudice. (People v. Horning (2004) 34 Cal.4th 871, 900; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We do not disturb the trial court's ruling unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues, supra, at p. 1124.)
The record shows that on direct examination, Ruiz testified that his soccer friends sitting at the table did not intervene to try to stop the attack on Flores, but rather they got up and moved away. On cross-examination, defense counsel explored this and related themes, asking Ruiz if none of the soccer friends went to help Flores; whether it was possible that Flores's group started the fight; and whether Ruiz joined Flores in the fight and punched people. In response, Ruiz testified that his friends left because "everybody's afraid to be beat up"; conceded that he did not see how the fight with Flores started; and stated that he went to break up the attack on Flores and only punched in self-defense. On redirect examination, the prosecutor then began the complained-of line of questioning concerning Ruiz's knowledge of the prior beating at the park.
Defense counsel's cross-examination of Ruiz questioned Ruiz's claim that his soccer friends did not intervene in the fight, and suggested that Flores and the other soccer players could have been the instigators of the fight and that Ruiz went to join, not to stop, this fight. The prosecutor's elicitation of testimony from Ruiz about his fear of retaliation based on a prior beating at the park was relevant to refute this line of defense;
i.e., supporting a theory that Ruiz was generally afraid to become involved in altercations and he and his friends were not the instigators or willing participants in the fight. Thus, the testimony about Ruiz's knowledge of and fearful reaction to the prior beating had significant relevance to refute the defense suggestion that the charged incident may have been one of mutual combat between two groups of males, including Ruiz, rather than a unilateral assault by defendant and his cohorts on Ruiz in response to Ruiz's plea that they stop attacking his friend.
Further, the trial court could reasonably conclude the probative value of the evidence was not outweighed by the potential for prejudice. Undue prejudice does not exist merely because highly probative evidence is damaging to the defense case, but rather arises from evidence that uniquely tends to evoke an emotional bias against the defendant or cause prejudgment of the issues based on extraneous factors. (People v. Doolin (2009) 45 Cal.4th 390, 438-439.) Given the brief nature of Ruiz's testimony about the prior beating, the court could reasonably conclude it would not generate an emotional bias or distract the jury from its task of adjudicating the charges based on the evidence. Further, the jury knew from other testimony about the prior beating at the park; thus, Ruiz's testimony concerning the beating did not provide the jury with information that it would not have otherwise known about.
In addition to Ruiz's testimony, the prior beating was described by Detective Hernandez when presenting Flores's prior inconsistent statements. When Flores testified, he denied knowing the identity of his assailants, denied seeing the attack on Ruiz, and denied any knowledge of prior beatings at the park. Thereafter, Detective Hernandez testified about Flores's prior inconsistent statements on these points, including Flores's statement to Detective Hernandez that he was afraid of retaliation because defendant and other Lomas gang members had regularly attacked innocent people at the park, including a friend who was beaten into a coma.
The trial court did not abuse its discretion in permitting Ruiz's testimony about the prior beating.
II. Failure to Sua Sponte Instruct on Aiding and Abetting
Defendant argues the trial court was required to sua sponte instruct the jury on an aiding and abetting theory of culpability with respect to the portion of the assault involving the scooter.
A trial court must sua sponte instruct on general principles of law that are commonly connected to the facts adduced at trial and that are necessary for the jury's understanding of the case. (People v. Young (2005) 34 Cal.4th 1149, 1200.) The court must instruct on every theory of the case supported by substantial evidence. (Ibid.) To establish culpability based on aiding and abetting, the defendant must have had knowledge of the perpetrator's unlawful purpose, intended to commit or encourage the offense, and by act or advice aided or encouraged the commission of the offense. (People v. Williams (1997) 16 Cal.4th 635, 676.) When the evidence can support culpability based on aiding and abetting, the jury should be instructed on the intent necessary to establish guilt on this theory. (People v. Williams, supra, at p. 676; People v. Boyd (1990) 222 Cal.App.3d 541, 557.) However, instructions on aiding and abetting are not required where the defendant was not tried as an aider and abettor and there was no substantial evidence to support the theory. (People v. Young, supra, 34 Cal.4th at p. 1201; People v. Boyd, supra, at p. 557.) Evidence is substantial if a reasonable jury could find it persuasive. (People v. Young, supra, at p. 1200.)
Defendant recognizes the prosecutor did not rely on an aiding and abetting theory. However, he argues that based on the evidence presented, the jury could have found that he participated in the group beating of Ruiz, but that someone else attacked Ruiz with the scooter. Further, defendant asserts that under the instructions provided to the jury, the jury might have thought he could be liable based on the scooter beating if he set in motion the events that caused the scooter attack even if he did not personally use the scooter. To support this, he cites the portion of the assault instruction which states that the touching "can be done indirectly by causing an object or someone else to touch the other person." (Italics added; see CALCRIM No. 875.)
Defendant's contention is unavailing because neither the prosecution nor the defense witnesses described a scenario suggesting the scooter assailant was encouraged by other persons to perpetuate this attack. Ruiz testified that a single person (defendant) attacked him with the scooter when he was at the minivan; the only people who saw this attack were children; and the other assailants were not near the minivan but were back at the area where the fight had started. Defense witness Rebolledo testified that a group of people were attacking defendant, during this attack a man swung the scooter at defendant, and the scooter instead hit Ruiz. Rebolledo's testimony did not suggest that one assailant encouraged another assailant to swing the scooter at Ruiz.
During closing arguments to the jury the prosecutor argued that defendant "chase[d] [Ruiz] down" and assaulted him with the scooter. In response, defense counsel argued that Ruiz's description of the scooter attack by the minivan did not comport with other facts, and it was more likely that (as described by Rebolledo) Ruiz was accidentally hit with the scooter by Ruiz's friend during the group fight. Consistent with the witnesses' testimony, counsels' arguments did not suggest the scooter attack on Ruiz was committed by an assailant with the encouragement or assistance of another individual.
Arguably, the jury could have drawn inferences supporting an aiding and abetting theory by crediting Rebolledo's claim that the scooter attack occurred during the group fight, but concluding the attacker was one of defendant's, not Ruiz's, companions. However, this theory was not presented to the jury through either witness testimony or argument of counsel. A trial court is "under no obligation to sift through the evidence to identify an issue that conceivably could have been, but was not, raised by the parties, and to instruct the jury, sua sponte, on that issue. . . . '[When a theory is] so far under the surface of the facts and theories apparently involved as to remain hidden from even the defendant until the case reached this court on appeal[,] . . . [t]he trial court need not . . . have recognized it and instructed the jury in accordance with it. Omniscience is not required of our trial courts.' " (People v. Montoya (1994) 7 Cal.4th 1027, 1050.)
Indeed, the record shows that, so as not to confuse the jury, the court and parties agreed not to instruct the jury on group beating principles concerning the great bodily injury enhancement because the prosecution's theory was that the scooter assault was committed solely by defendant after he broke away from the group fight.
To the extent defendant's argument is premised on the portion of the assault instruction stating that the touching element is satisfied if the defendant inflicted it indirectly by "causing . . . someone else to touch the other person," we are not persuaded. Contrary to defendant's assertion, there is no reasonable likelihood the jury interpreted this to mean that defendant could be liable for the scooter assault based solely on a finding that he was a primary initiator of the group beating and hence "set in motion" the events leading to the scooter assault. No such theory of causation was conveyed to the jury, and there is no basis to conclude the jury interpreted the instruction in this fashion. We likewise reject defendant's suggestion that the evidence and argument about the gang's modus operandi of joining together to commit assaults, relevant to the gang enhancement, creates the possibility that the jury thought defendant could be liable for the scooter assault if one of his gang accomplices committed it. Again, no such theory of culpability for the scooter assault was set forth for the jury's consideration.
On this record, the evidence, instructions, and arguments as presented to the jury did not support a theory of culpability based on a finding that defendant caused or encouraged another person to hit Ruiz with the scooter. Based on the manner in which the case was developed, the record shows the jury understood that if the prosecution did not prove that defendant was the person who hit Ruiz with the scooter, defendant could not be held responsible for the scooter portion of the attack. Accordingly, the trial court was not required to sua sponte instruct on principles of aiding and abetting for purposes of determining guilt based on the scooter assault.
III. Impeachment of Defense Witness with Prior Juvenile Adjudication
Defendant argues the trial court erred in permitting the prosecutor to impeach defense witness De Rosa with a prior juvenile adjudication for theft. According to the prosecutor's offer of proof, De Rosa sustained the juvenile adjudication 10 years earlier, when he was 15 years old. The offense had been charged as a robbery, and was adjudicated as a felony violation of Vehicle Code section 10851 (unlawful vehicular driving or taking). Defense counsel objected to the impeachment evidence, arguing it should be excluded because it was remote and based on a juvenile adjudication, not a criminal conviction. The trial court overruled the objection, finding the evidence was admissible for impeachment. At trial, the prosecutor asked De Rosa, "[D]id you suffer a theft conviction as a juvenile?" De Rosa answered, "Yeah, when I was 14 years old. . . . [¶] Eleven years old."
On appeal, defendant again asserts the impeachment evidence should have been excluded because it was based on a juvenile adjudication, not a criminal conviction. To support this contention, he cites article 1, section 28, of the California Constitution ("section 28"), which includes a provision stating that felony convictions may be used for impeachment. (§ 28, subd. (f)(4).) He posits that because a juvenile adjudication is not a felony conviction, the adjudication cannot be used for impeachment.
Section 28 was added to the California Constitution in 1982 through the passage of Proposition 8. (See People v. Wheeler (1992) 4 Cal.4th 284, 291, & fn. 3.) Section 28, subdivision (f)(4) provides: "Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding." In People v. West (1984) 154 Cal.App.3d 100, 107-110, the court concluded that section 28, subdivision (f)(4) applies to felony convictions, including when the defendant was a juvenile tried as an adult, but not to juvenile adjudications. (See People v. Weidert (1985) 39 Cal.3d 836, 847-848, fn. 10.)
Even assuming section 28, subdivision (f)(4) does not apply to juvenile adjudications, section 28, subdivision (f)(2) nevertheless permits impeachment based on juvenile adjudications. Section 28, subdivision (f)(2) broadly provides for the admissibility of all relevant evidence. Based on this provision, the courts have concluded that (subject to certain restrictions) evidence of a witness's misconduct may be used to attack credibility, regardless of whether the misconduct evidence is derived from a felony conviction, a misdemeanor conviction, or a juvenile adjudication. (People v. Wheeler, supra, 4 Cal.4th at pp. 291-292, 297, fn. 7; People v. Lee (1994) 28 Cal.App.4th 1724, 1740 [misconduct underlying juvenile adjudication may be used for impeachment]; see also People v. Smith (2007) 40 Cal.4th 483, 512-513.)
Section 28, subdivision (f)(2) (former subdivision (d)) states that relevant evidence shall not be excluded in criminal proceedings, subject to several statutory exceptions. As interpreted by the courts, the misconduct impeachment evidence must involve moral turpitude, and the trial court retains discretion to exclude the evidence under Evidence Code section 352. (People v. Wheeler, supra, 4 Cal.4th at pp. 295-296.)
However, under California's hearsay rules, the fact of the juvenile adjudication itself may not be shown through cross-examination of the witness; rather, the witness may only be cross-examined about the conduct underlying the adjudication. (See People v. Chatman (2006) 38 Cal.4th 344, 373; People v. Wheeler, supra, at pp. 297-300, & fn. 14; People v. Cadogan (2009) 173 Cal.App.4th 1502, 1515, fn. 4; People v. Lee, supra, 28 Cal.App.4th at p. 1740; see also People v. Smith, supra, 40 Cal.4th at p. 512.) Thus, the impeachment of De Rosa should not have included a reference to the juvenile adjudication itself. However, the error was harmless. The prosecutor was entitled to ask De Rosa if he had engaged in a theft; the only error was the mention of the juvenile adjudication itself; and the mention of the adjudication was very brief. It is not reasonably probable that the outcome of the trial would have been different if there had been no reference to the adjudication itself. (See People v. Williams (1999) 72 Cal.App.4th 1460, 1465, fn. 8.)
A judgment of conviction is considered a hearsay statement about the convicted person's conduct, and the conviction may not be shown through cross-examination of the convicted person unless there is statutory authorization for permitting such testimony. (People v. Wheeler, supra, 4 Cal.4th at pp. 297-300, & fns. 13-14; People v. Cadogan, supra, 173 Cal.App.4th at pp. 1514-1515, & fn. 14.) Evidence Code section 788 permits a felony conviction to be established through the record of conviction or cross-examination, and Evidence Code section 452.5, subdivision (b) permits a misdemeanor conviction to be shown through the record of the conviction. (People v. Wheeler, supra, 4 Cal.4th at pp. 298-300; People v. Cadogan, supra, at p. 1515, fn. 14; see also People v. Lee (2011) 51 Cal.4th 620, 650.) However, there is no statute permitting a misdemeanor conviction (or juvenile adjudication) to be shown through cross-examination. (See People v. Wheeler, supra, at pp. 298-299; People v. Cadogan, supra, at pp. 1514-1515, & fn. 14.)
The judgment is affirmed.
HALLER, Acting P. J. WE CONCUR: