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The People v. Juan Rizo Arrellano

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 9, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JUAN RIZO ARRELLANO, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F01200)

The opinion of the court was delivered by: Blease, J.

P. v. Arrellano

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Juan Rizo Arrellano of assault with a firearm, finding he personally used a firearm, and also convicted him of carrying a loaded firearm in public that was not registered to him, and drunk driving with a blood alcohol level over .15 percent, but acquitted him of a hit-and-run driving charge. (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a), 12031, subd. (a)(2)(F); Veh. Code, §§ 20002, subd. (a), 23152, subds. (a) & (b).) Defendant waived a jury trial on two allegations that he had a prior DUI conviction, and he later admitted that prior conviction. The trial court sentenced defendant to prison for five years, and defendant timely filed this appeal.

On appeal, defendant contends no substantial evidence supports the assault conviction, because the facts show he acted in self-defense. Although there was evidence supporting a self-defense theory, the jury was not required to accept that evidence as true, and we conclude substantial evidence supports the assault conviction. Defendant also contends the trial court erred by excluding critical impeachment evidence, namely, that the main prosecution witness had a prior felony conviction involving moral turpitude. We conclude the trial court acted within its discretion in excluding that conviction for impeachment purposes. We shall affirm.

FACTS

Maurice Campbell testified that on the evening of February 13, 2009, he was at his girlfriend Mystique McFarland's house on Lerwick Road, a dark street. His brother's girlfriend, Shauna Russell, knocked on the door and reported that a car had driven by and hit McFarland's rental car, a Chevrolet Malibu. Campbell grabbed his keys, got into his own vehicle, a Chevrolet Suburban, saw the rental car had minor damage, like "an exchange of paint," and he gave chase. He saw a Toyota driving down the street, moving slowly, and "swerving back and forth, left and right." Campbell passed Russell's brother Daniel, who was running down the street, yelling and trying to flag the Toyota down. Campbell testified he wanted to get the car's license number and the driver's information to avoid a $500 deductible on the rental car, and that he did not call the police because "I was trying to give him a break."

Campbell testified he caught up with the Toyota and blew his horn and flashed his high beams, and when the Toyota stopped in the middle of the road, Campbell "pulled in front of him[,]" about 10 feet in front of the Toyota.

Campbell then testified: "I got out [of] the truck, I walked up to the car. I said, 'Hey, man, you hit my rental car.' I said, 'I need your license.' Then he said, 'Huh?' Then I said, 'Hey, man, you hit my fucking rental car.' I said, 'I need your license,' and stuff."

Campbell was about two feet from the driver's window, and at first did not yell, but he did yell "'You hit my fucking rental car'" after the driver said "Huh," because the window was still rolled up. He identified defendant as the driver. Defendant had been wobbling or bobbing his head, as if intoxicated, but then he made eye contact with Campbell, his expression changed and he frowned at Campbell. Campbell saw defendant reaching and thought he was "going for a weapon." Campbell testified: "When I seen him reach over, I grabbed the door. And when I grabbed the door, his gun met me in my face. And I grabbed his hands, and when I grabbed his hand, I felt his finger trying to pull the trigger. And when he pulled the trigger, I moved my head like this (indicating), and I fell on him -- I fell on top of him on -- inside his car."

Although Campbell had not seen what defendant was reaching for, he opened the door "Because I felt if I turned around and [ran], if he had a gun, he was going to shoot me in the back." Campbell first saw the gun inches from his face: "I was still outside the car. I was bent over a little bit, and then when I seen the gun, that's when I grabbed onto his hands." He moved his head to the side when defendant pulled the trigger, and then he fell into the car, on top of defendant. He could smell alcohol on defendant's breath. Campbell thought he had been shot, his ears were ringing from the gunshot, and defendant was "trying to point the gun to shoot at me. So then we get to wrassling and punching and he head butting me and I'm hitting him with my elbow, and then I finally get the gun from him."

When Campbell got the gun, he told defendant that defendant had tried to kill him, and he hit defendant in the head with the gun. Defendant called Campbell a "mayate" once or twice, which Campbell understood to mean "nigger." Campbell's testimony at trial and at the preliminary hearing varied about whether defendant called him a "mayate" before or after Campbell hit defendant, but Campbell testified the word "mayate" did not bother him. He denied hitting defendant for revenge, but he also testified he thought defendant deserved it and he could have killed defendant, "but it wasn't in my heart to do that." He hit defendant to subdue him, and previously testified he did so to keep defendant from fighting back.

Campbell drove back to McFarland's house and found he was bleeding on the back of his head, on the side where the gun had been fired, and the jury was shown photographs of Campbell's injury. Campbell did not call the police, because he "was nervous," and he called his girlfriend and his sister instead. He went with his family back to the scene, having his cousin Kareem Rahmaan carry the gun, and told an officer he was involved in the incident and his cousin had the gun.

Campbell was checked by paramedics, who thought he might have been struck by broken glass, but they did not find any glass in his head.

At the preliminary hearing, Campbell had testified he told an officer "'As I walked over to talk to him, was getting to his car, that's when he pulled out a gun and fired a shot.'" At trial Campbell conceded he might have said that to the officer that night, because the incident had happened so fast, but Campbell said that he was testifying at trial to the best of his memory of what happened.

Shauna Russell testified she saw a car swerving back and forth, driving slowly, and that "it would slow down and it would speed up," and then it sideswiped the rental car. She told her brother Daniel to try to stop the car and she ran to get Campbell to tell him what happened. After Russell heard two gunshots, Campbell returned to the house; he was upset, and he had blood on the shoulders of his shirt.

Deputy Alexander McCamy arrived at the scene at 8:05 p.m., saw a bullet hole in the Toyota's windshield and found defendant in the driver's seat, "unconscious or unresponsive," leading him to think defendant had been shot. Defendant's reactions were very slow, his speech was impossible to understand and he smelled like alcohol. Deputy McCamy later spoke with Campbell, who was at times calm and at times "animated, very excited." Campbell gave "a very disjointed story" about what had happened. Campbell had a small laceration on the back of his head and some blood on the shoulder and collar of his shirt. Campbell's cousin gave the deputy a loaded Smith and Wesson revolver that Campbell said he had taken from defendant. On cross-examination, Deputy McCamy testified Campbell had told him that defendant shot at him when he was in front of defendant's car, and that Campbell's wound was from broken glass. On redirect, Deputy McCamy testified Campbell did not say he walked in front of defendant's car, only that as he neared the car, defendant produced a gun. Deputy McCamy told another deputy that Campbell had been grazed on the head by a bullet. Deputy McCamy reiterated that Campbell's story was disjointed, and although he understood Campbell to have meant that the gun was fired at him through the windshield, "he was also telling me that the gun may have gone off while he was holding the gun with the defendant's hands [on] it."

Deputy Ramon Aragon testified that when he spoke with defendant at the scene, "he had told me that he had been stopped by some unknown black males." He said three black men stopped his car, "that they were in front of his vehicle and that his door was open, he was struck on the head. I asked him if he had been robbed. He stated no. He wasn't very clear in his description of the suspects, the alleged suspects." The next day, after defendant reiterated his story of the three black men, Deputy Aragon asked him about Campbell's version of events, and defendant said he did not remember, he had been drinking, and he may have passed out. At one point he said the black men had a gun, but later he admitted he had found the gun in a dumpster.

Defendant had gunshot residue on his hands. The parties stipulated his blood draw tested at .22 percent blood alcohol level.

Takiywa Berreman did not testify, but a recording of her 911 call was played. We quote from the transcript used at trial, as do the parties. Berreman described a "black guy" in "Tahoe" that opened the door of his truck "and all I heard him say is, 'You just hit my F'g car', talking to the car behind him. And I seen him go to the car and he opened the door that looked like an Hispanic man." Then "it looked like the black guy was patting him in his pocket and the next thing I know, I just hear, pop, pop." She saw the "black guy" shoot the other man twice and then "they jumped back in the truck." As the police approached, Berreman told the dispatcher "He's dead."

Because the parties had stipulated that the gun was not registered to defendant, the jury was not instructed on that element of the firearms offense.

As to the assault charge, the prosecutor argued defendant did not act in self-defense, but instead, without fearing serious harm from Campbell, he pulled a gun, pointed it at Campbell, and fired it at Campbell.

The defense conceded the gun possession and DUI charges, but argued defendant was too drunk to know he had sideswiped a car and was not guilty of the hit-and-run charge. As for the assault charge, the defense argued Campbell's story was implausible, and instead argued, partly based on Berreman's version, that Campbell chased defendant down, entered the car meaning to beat him, and as the men struggled for the gun, it discharged. Campbell then wrested the gun from defendant, pistol-whipped him, and fled.

In rebuttal, the prosecutor in part argued that Berreman had misinterpreted what she was seeing.

The jury convicted defendant of all counts except the hit-and-run. Defendant later admitted the prior DUI conviction.

DISCUSSION

I. Sufficiency of the Evidence

Defendant contends the evidence shows he acted in self-defense, and therefore no substantial evidence supports the assault conviction. We disagree.

As defendant points out, the People had the burden to prove beyond a reasonable doubt that defendant did not act in self-defense, and the jury was so instructed. (CALCRIM Nos. 875, 3470.) However, this does not alter the well-settled substantial evidence standard of review.

"We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense." (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.)

Defendant himself observes that a person is privileged to use deadly force "only when the apparent peril is great and imminent." (1 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000) Defenses, § 72, p. 407.) Further, "Any force which is excessive, i.e., unreasonable under the circumstances, is not justified." (Ibid.) As stated in a case cited by Witkin, "[T]he extent to which one may make resistance against an aggressor is a fact which must be determined by the jury by keeping in mind the amount or extent of force which a reasonable person would employ under similar circumstances. The right to make a counter-assault and the extent thereof depend upon the existence or apparent existence of such conditions as would be deemed sufficient by a reasonable man under a similar situation." (People v. Moody (1943) 62 Cal.App.2d 18, 23; see People v. Lee (2005) 131 Cal.App.4th 1413, 1427 [belief must be "objectively reasonable"].) "A simple assault does not justify homicide." (People v Anderson (1922) 57 Cal.App. 721, 727.)

As we have said before, in a homicide case, "where the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine. [Citation.] Where the evidence is uncontroverted, but reasonable persons could differ on whether the resort to force was justified or whether the force resorted to was excessive, then the issue is a question of fact for the trier of fact." (People v. Clark (1982) 130 Cal.App.3d 371, 379, disapproved on another ground, People v. Blakeley (2000) 23 Cal.4th 82, 92.)

In this case, the evidence was not uncontroverted, and the uncontroverted portions were susceptible of different interpretations. Viewing the evidence and all rational inferences in favor of the verdict, we conclude substantial evidence supports the assault conviction.

Campbell flashed his high beams and honked his horn, then stopped in front of defendant's car, got out, and came to the window, no doubt angry that defendant had just sideswiped the parked rental car and failed to stop. But Campbell testified he did not at first yell, he yelled when he could not get defendant's attention, either because defendant's window was rolled up or because of defendant's extreme intoxication, or both. It was then that Campbell yelled "'You hit my fucking rental car[.]'" Although defendant had been bobbing his head, he then made eye contact with Campbell, frowned, and reached for what Campbell correctly feared to be a deadly weapon. It was then that Campbell "grabbed the door. And when I grabbed the door, his gun met me in my face. And I grabbed his hands, and when I grabbed his hand, I felt his finger trying to pull the trigger. And when he pulled the trigger, I moved my head like this (indicating), and I fell on him -- I fell on top of him on -- inside his car."

The jury could rationally conclude from this testimony that defendant responded with excessive force to what had been at worst an angry confrontation between motorists.

Contrary to defendant's view, the jury was not required to believe defendant saw Daniel running towards his car, or that defendant reasonably thought he was about to be the victim of a carjacking by Campbell or Daniel, or both.

The jury could rationally reject Berreman's version, given that some facts she told the 911 dispatcher proved wrong, including her statement that Campbell fired the gun. That was contradicted by Campbell's testimony and by the gunshot residue found on defendant's hands. (See Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 [even uncontradicted testimony may be rejected if there is a rational reason for doing so].)

In short, the jury was not compelled to find that the circumstances, as they would have appeared to a reasonable person, justified defendant's act of firing a gun at Campbell, therefore we reject his no-substantial-evidence contention.

II. Impeachment Evidence

The People moved in limine to exclude Campbell's 1992 conviction for second degree burglary, arguing it was "extremely remote in time without being necessarily probative. As such, the People request that any evidence concerning this conviction, or any other arrests, be excluded."

At the hearing on the motion, the defense emphasized that burglary was a felony of moral turpitude, and stated "I wouldn't object to the Court sanitizing it, saying he was convicted of a crime of moral turpitude as a felony back in 1992[.]"

The trial court stated it used "a default 10 year rule" for remoteness. We observe that application of such a presumptive rule is itself a permissible exercise of discretion. (People v. Pitts (1990) 223 Cal.App.3d 1547, 1554 (Pitts).)

The prosecutor stated Campbell's only other conviction was a 2004 misdemeanor battery for which he received probation. That conviction did not reflect moral turpitude. (See People v. Lopez (2005) 129 Cal.App.4th 1508, 1522.) However, Campbell had a steady string of intervening arrests, including for murder (1993), assault with a deadly weapon (1995), assault with a firearm (1997), and robbery (2001).

The defense noted that the battery conviction, although not involving moral turpitude, was relevant to the question whether the witness had led a blameless life after the felony at issue. (See People v. Campbell (1994) 23 Cal.App.4th 1488, 1496-1497 [DUI and driving an unregistered vehicle valid intervening offenses to show defendant had not led a blameless life after 10-year-old prior].) The defense also argued remoteness would be a factor the jury could consider, but it should not bar the prior.

The facts of Campbell's second degree burglary conviction were unknown.

The trial court granted the motion, stating it disregarded the intervening arrests, and finding the 17-year-old second degree burglary conviction was too remote.

Under Evidence Code section 352, a trial court may exclude relevant evidence, including prior convictions of witnesses, subject to review for an abuse of discretion. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) When the witness sought to be impeached is not the defendant, the two key factors are "whether the conviction (1) reflects on honesty and (2) is near in time." (People v. Clair (1992) 2 Cal.4th 629, 654.)

Although any burglary reflects moral turpitude (People v. Plager (1987) 196 Cal.App.3d 1537, 1545; People v. Hunt (1985) 169 Cal.App.3d 668, 675), Campbell's burglary was of the second degree, it was not a residential burglary conviction. This somewhat lessens its probative value on the issue of credibility. Further, the trial court could rationally find that it was remote, as it was 17 years old.

As stated, it was permissible for the trial court to begin its analysis with a 10-year presumption for remoteness. (Pitts, supra, 223 Cal.App.3d at p. 1554.) Although there may be no point at which a conviction is necessarily remote, one court has said a 20-year-old conviction "meets any reasonable threshold test of remoteness." (People v. Burns (1987) 189 Cal.App.3d 734, 738; see People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926 [characterizing Mendoza's "1978-79 and 1989" priors, in case involving 1995 offense, as possibly remote in themselves, but upholding trial court's ruling admitting them because defendant did not lead a blameless life thereafter]; see also People v. Antick (1975) 15 Cal.3d 79, 98-99 [17- and 19-year-old prior forgery convictions deemed remote], partly abrogated by Proposition 8, as explained by People v. Castro (1985) 38 Cal.3d 301, 306-313 [intent of Prop. 8 was "to reject the rigid, black letter rules of exclusion which we had grafted onto the code by the Antick line of decisions"], and disapproved on another point in People v. McCoy (2001) 25 Cal.4th 1111, 1116-1123.)

The trial court did consider Campbell's 2004 conviction for misdemeanor battery. Although that shows Campbell did not lead a perfectly blameless life after his felony, because that conviction did not reflect moral turpitude, we cannot say it compelled the trial court to admit the prior felony conviction.

Defendant contends Campbell's arrests "were too numerous to suggest repeated police errors, and most of them suggested violence." Defendant does not cite any authority that allows mere arrests to be used to show a person has not led a legally blameless life, therefore the point is forfeited. (See In re Ross (2009) 170 Cal.App.4th 1490, 1514; People v. Murray (2008) 167 Cal.App.4th 1133, 1143.) Thus, defendant has not established that the trial court abused its discretion by declining to consider Campbell's arrests.

Although another court may have concluded otherwise, given the age of the felony, the fact that it was for second-degree burglary, and given that Campbell had only one intervening misdemeanor--not involving moral turpitude--we cannot say the trial court abused its discretion in excluding Campbell's prior.

Contrary to defendant's view, limiting impeachment of a prosecution witness does not equate to depriving a defendant of a defense, so as to establish a federal due process violation. "[N]otwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)

Campbell was impeached with his inconsistent statements, and the implausibility of some testimony, such as his minimization of his anger toward defendant. The fact the jury did not learn that 17 years earlier he committed a second-degree burglary did not significantly alter its assessment of his credibility.

III. Custody Credits

We need not consider whether recent amendments to Penal Code section 4019 apply retroactively to this pending appeal. Defendant's personal use of a firearm limits him to 15 percent credits, and disqualifies him from the new formula. (See Pen. Code, §§ 667.5, subd. (c)(8), 12022.5, 2933.1, 4019, subds. (b)(2) & (c) (2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)

DISPOSITION

The judgment is affirmed.

We concur: RAYE, P. J. MAURO, J.

20110209

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