(Contra Costa County Super. Ct. No. 050707604). Trial Judge: Nancy Davis Stark.
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
Arturo Jesus Hernandez appeals from a conviction of assault with a deadly weapon and by force likely to produce great bodily injury. He contends the judgment must be reversed due to the trial court‟s placement of a uniformed and armed bailiff behind him while he testified and refusal of a defense request for an instruction directing the jury to disregard the bailiff‟s placement. He further contends a great bodily injury enhancement must be reversed because the trial court failed to instruct the jury that the enhancement allegation had to be proven beyond a reasonable doubt, the trial court failed to recognize and exercise its discretion to strike the enhancement, and defense counsel‟s failure to request the court to strike the enhancement denied appellant effective assistance of counsel.
In a petition for writ of habeas corpus, appellant contends he was denied effective assistance of counsel by his trial attorney‟s failure to object to the bailiff‟s placement until after the first portion of appellant‟s testimony and failure to request that the court exercise its discretion to strike the great bodily injury enhancement.
We conclude appellant‟s conviction must be reversed and find it unnecessary to address the habeas petition.
Appellant was charged by information filed on May 18, 2007, with one count of assault by a deadly weapon and by force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).)*fn1 It was alleged that in the commission of this offense appellant personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)), and that the charged offense was a serious felony within the meaning of section 1192.7, subdivision (c).
Jury trial began on July 11, 2007. On July 17, the jury found appellant guilty of assault with force likely to produce great bodily injury and found the personal infliction of great bodily injury enhancement allegation true. The jury found appellant not guilty of assault with a deadly weapon.
Appellant was sentenced on September 28, 2007, to a total prison term of five years, consisting of the lower term of two years for the assault and a consecutive three years for the great bodily injury enhancement.
Appellant filed a timely notice of appeal on September 28, 2007.
A tape was played for the jury in which an anonymous caller reported to the 911 operator that he had just seen someone "getting beat up" at Lone Tree and Putnam streets in Antioch. The caller said it looked like a man beating up a woman and described, "he had her in a arm lock and he was hitting her and slapping her and threw her all to the ground. Now they‟re walking away." Asked whether the victim needed an ambulance, the caller said the woman "apparently seems to be okay, she‟s walking behind him, but I‟m sure she‟s hurt because he was hitting her with all his strength." The caller reported that the two people were heading toward Putnam and stopped at a gas station on the corner, where "a whole bunch of people" were trying to talk to them.
Deva Belarde testified that she met appellant about a week and a half before March 11, 2007, at a bus stop outside the senior center where she did volunteer work. A few days later, she saw appellant outside Lone Tree Liquors and asked if he was hungry; he said he was not and Belarde left. On March 10, Belarde saw appellant again at the liquor store when they were both buying beer. She asked again if he was hungry and invited him to her house to drink beer. Appellant had marijuana and wanted to see if Belarde knew anyone who wanted to buy some, but she did not. The two walked around the corner to Belarde‟s house, where they drank their beer and talked for 20 or 25 minutes. Appellant did not eat dinner and left when Belarde‟s fiancé politely asked him to do so. Belarde testified that she invited appellant over because he looked tired and a little bit dirty and she thought he might be hungry. She said she did this "a lot of times with people" and enjoyed the company, and appellant "seemed to be friendly."
Around 10:00 or 10:30 p.m. the next night, March 11, Belarde went to the liquor store, saw appellant sitting outside, drinking a 16-ounce beer and asking people for money. She sat down and talked with appellant and other people in the area for more than an hour, drinking half of a half pint of vodka she had purchased at the Quik Stop market across the street and a 16-ounce beer appellant bought her. Belarde testified that she had had a 40-ounce beer at around 2:00 p.m. and another around 6:00 p.m., that she drank a lot of beer, and that a 40-ounce beer was "normal" for her and did not make her feel drunk. On cross-examination, Belarde stated that she had had a 40-ounce beer, a 16-ounce beer and half a pint of vodka while sitting with appellant; she acknowledged having told a defense investigator in May 2007 that she had drunk the whole half pint of vodka but stated this was not in fact correct. She did not remember what she told Officer Hewitt about how much she had had to drink but agreed that if she had told him just one 40-ounce beer, that would not have been true. She acknowledged that when interviewed by Officer Bergerhouse about a week after the incident, she mentioned the beer she had consumed but not the vodka. She also acknowledged that she was "panhandling" while she visited with appellant, although she stated she only asked people she knew for money. Belarde testified that although she felt sober when she got to the liquor store, after sipping half the bottle of vodka, she was starting to feel the effect of the alcohol, "catching a small buzz." Appellant consumed a 32-ounce beer after the 16-ounce one he was drinking when Belarde arrived.
Belarde testified that she and appellant had a disagreement when he wanted to go to the bus stop: She wanted to help him get there because he was "staggering somewhat," but appellant wanted to walk by himself. After they crossed the street, Belarde put her hand on appellant‟s shoulder. As they reached Sylvia‟s Kitchen, appellant raised his voice, accusing Belarde of being a prostitute in what she felt was an attempt to insult her. He expressed some more "vulgarities" and she became upset, pushed him with the hand on his shoulder and started to turn and walk away. At this point they were in front of a gas station. Appellant grabbed her by the shoulder and arm, turned her around and punched her in the left eye, causing her to get dizzy. She shoved him again, this time from behind. Appellant shoved her and hit her on the side of her face with a "stick" or "branch" he had picked up from a planter by Sylvia‟s kitchen. She fell down and was bleeding, then got up and went to the gas station. Appellant ran up a hill toward a church behind the gas station. Belarde fell down again by the pumps at the gas station. She later identified the branch appellant hit her with from two shown to her by the police, choosing it because the other one she was shown had leaves on it and was "more like a stick."
On cross-examination, Belarde testified that she told the defense investigator that appellant wanted her to walk him to the bus stop but then complained as they got closer to it. She remembered attempting to hold appellant up, but did not remember whether she had told the defense investigator this. She did not remember telling the investigator that appellant told her to stop "pulling on" him or that he accused her of attempting to steal $10 from him, but testified that appellant did not make this accusation. She also testified, despite her previous statements to the contrary, that she did not push or shove appellant during the incident.
Belarde testified that she did not have a weapon with her, did not punch, kick or slap appellant and did not try to take his wallet. She was 49 years old, four feet eleven inches tall and weighed about 155 pounds. The amount she had had to drink that day was normal for her and made her feel "[h]appy." Walking with appellant that night, she felt "buzzed" but not "out of control." Belarde testified that she felt tired and sometimes got the "shakes" when she did not drink. She denied having ever had blackouts or seizures related to her alcohol consumption, but her medical records reflected several such incidents.*fn2 Belarde had been unemployed for about three years.
Photographs were taken of Belarde‟s injuries, which showed her left eye was swollen and there was broken skin and bleeding under that eye. Belarde testified that she did not require stitches or surgery and was released from the hospital the same day. She testified that she lost consciousness on the night of the assault but did not know for how long. At the time of trial, she still felt pain on her left cheekbone and left temple when she touched them, and her eye still felt swollen. She also had trouble sleeping, had nightmares, and felt an "extreme amount of stress" caused by this case.
On cross-examination, when asked about statements she had made to medical personnel, police and a defense investigator, there were many details Belarde said she did not recall. She remembered telling the ambulance personnel that she had been hit in the face with a stick or branch by a man who was trying to rob her, but testified that in fact appellant did not try to rob her. She remembered telling a doctor at the hospital that she drank about a six-pack a day. Belarde testified that her recollection of some parts of the incident were vague because she had been "blocking out things since the incident" because she did not want to relive it. She testified at one point that she did not know whether her drinking affected her memory and at another point that it did not.
Antioch Police Officer B.J. Hewitt was dispatched to the Valero gas station on Lone Tree Way at about 10:25 p.m. on March 11, 2007, based on a report of a woman having been badly beaten. Several officers were on the scene and Hewitt saw an ambulance departing. Hewitt and other officers began a search for the suspect, who had been described as a Hispanic male with salt and pepper hair, wearing black jeans and a white shirt. Appellant was found sitting on the ground between shrubs next to a fence by a church, some 200 to 300 yards from the gas station. He was arrested without incident. Hewitt could smell alcohol on his person and saw that his knuckles were bleeding and he had a scrape on his forearm.
When Hewitt took a statement from Belarde at the hospital, she smelled strongly of alcohol, was "very upset, traumatized" from the incident, was shaking a little bit and was bruised and bleeding from her face. In the interview, a tape of which was played for the jury, Belarde said appellant had gotten drunk and wanted to go home to his daughter‟s house; she tried to walk him to the bus and he "snapped" and hit her face. She said appellant hit her three, four or five times with his fists and then once with a stick, by the Shell station. She said she had known appellant for two weeks and that she had had a 40-ounce "King Cobra" to drink, which she had gotten from the Quik Stop. Hewitt testified that he asked if Belarde had asked appellant for money and she said she had not, but appellant had tried to borrow money from her. Hewitt looked for the stick along the route Belarde described having walked but did not find it.
Antioch Police Officer Steve Bergerhouse searched the area on March 12 for a stick that might have been out of place or broken from a tree. He found a long stick across from Sylvia‟s Kitchen that was three to four feet long and half an inch in diameter, and another stick, about a foot long and three quarters of an inch in diameter, about three feet up the embankment at the rear of the Valero gas station. Belarde identified the shorter stick as the one used in the assault. There was no blood on the stick and it was not tested for DNA. The stick did not match the trees on the embankment. Bergerhouse attempted to view video surveillance tapes from the gas station, but it appeared the equipment had not been working.
Bergerhouse interviewed Belarde on March 19. She seemed "real frail," had a hard time standing at times and was "very shaky." Her left eye was closed and swollen and the left side of her face was bruised; her hands were trembling when the officer had her sign some forms. Belarde did not smell of alcohol. She told Bergerhouse that appellant had told her he had $50 and there was a rumor she was a prostitute, and that appellant "snapped" when they got close to the Valero station and began to punch her with his fists. She did not try to hit him back and tried to cover her face; he picked up a wooden stick and hit her face one time, she fell to the ground and he ran toward the Valero station. When Bergerhouse asked Belarde about having told Hewitt the beating took place in front of the Shell station, she clarified that it actually was on the other side of the street. She told Bergerhouse that she had had two beers, whereas she had told Hewitt she only had one. Bergerhouse testified that in his experience, victims‟ stories "tend to waiver" from the original statements at the time of the incident to subsequent statements to an investigator. Bergerhouse acknowledged some inconsistencies between what Belarde told him and statements he subsequently saw reflected in her medical records, including her having told the emergency room physician she had been assaulted by someone she did not know and had been kicked as well as punched, but did not attempt to ask Belarde about them. Bergerhouse testified that Belarde‟s injuries, statements and medical records were consistent with what he found in his investigation, and her statements to him were consistent with what she told Hewitt and "consistent days apart."
Paramedic Jennifer Matthews responded to the call involving Belarde on March 11, 2007. Belarde told her, "[m]y face is messed up," and said she had been "[h]it with a stick or branch one time in the face by a man who was trying to rob her." Belarde said she had consumed one quart of beer. Matthews testified that Belarde seemed upset but was not confused. She had bruising and swelling around her left eye and lip and two cuts, one under her eye and one on her lip. Belarde reported she had not lost consciousness.
Defense investigator Paige Devereaux spoke with Belarde briefly on April 26, and interviewed her on May 2, 2007. On both occasions, Belarde had a "strong odor" of alcohol. Belarde said she sat and visited with appellant outside the Quik Stop for a couple of hours on March 11, during which time she drank two 40-ounce beers and a half pint of vodka. She said appellant might have bought her a beer but she could not really remember, and she was "buzzing" but not drunk. Belarde said she had known appellant for a week or two and had invited him to her home for dinner one night.
Belarde told Devereaux that appellant wanted her to walk him to the bus stop and that she was trying to hold him up and help him walk because he was drunk and walking "sideways." Belarde reported that appellant told her to stop "grabbing on him" and accused her of trying to steal $10 from him, and told Devereaux that she was not trying to steal money from him. Appellant then asked Belarde if she was a prostitute and she got upset and told him she was "not like that." Belarde said appellant pushed her down and hit her with a stick; she did not mention being punched and did not say she pushed appellant.
Appellant‟s version of the admitted altercation differed significantly from that of Belarde. He testified that he met her two or three days before March 11, when she started to talk to him while he was drinking a beer and panhandling outside Lone Tree Liquors. Belarde was drinking a 16-ounce beer and a "half pint of some clear liquid." They talked for half an hour to an hour, and Belarde invited appellant to her house for a drink. Appellant ...