IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSEPH ANTHONY ESQUIVEL, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F08328)
The opinion of the court was delivered by: Robie , J.
P. v. Esquivel 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
During a fight between defendant Joseph Anthony Esquivel and acquaintance Terry Smith about defendant's mistreatment of defendant's then-girlfriend A., defendant stabbed and beat up Smith. Smith was hospitalized with 39 stitches on his neck, 18 stitches or staples on his face, and 2 or 3 stitches or staples on his head. A jury found defendant guilty of battery causing serious bodily injury and assault with a deadly weapon and force likely to produce great bodily injury. The court found he had one prior strike and one prior serious felony conviction and sentenced him to 14 years in prison for these crimes.
Defendant appeals, contending: (1) the court erred in admitting evidence of his domestic violence against A.; (2) the court omitted necessary instructions on self-defense; (3) these two errors led to "cumulative" prejudice; and (4) the court erred in refusing to hold an evidentiary hearing on defendant's new trial motion. Disagreeing, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the morning of July 27, 2009, Smith was standing in the parking lot of his sister's apartment complex talking on the phone with a friend. He saw defendant leaving A.'s apartment, and Smith called defendant over to him. Smith wanted to ask defendant a few questions about his relationship with A. A.'s mother had asked Smith to talk with defendant about a "[p]hysical" "incident that had happened between [defendant] and [A.]" A few days earlier, Smith had "seen [defendant] grab [A.] in an aggressive . . . way." On another occasion, Smith had "seen [A.'s] face dripping with blood and two black eyes," although he did not know what had happened to cause these injuries because he was not there.
When defendant came over to Smith, defendant "got a little upset that [Smith] was trying to get involved in his relationship." The two men were "yelling or speaking loudly" about a foot and one-half from each other. "Then [they] got in each other's faces and bumped chests a little bit." Defendant threw the first punch and hit Smith in the face. Smith swung back. Smith "had [defendant] up against [his] sister's car," holding defendant by his shirt. Defendant reached across Smith's neck, and Smith felt a scratching sensation. Smith saw something shiny in defendant's hand. Smith pulled defendant's arm off his neck, and the two started wrestling on the ground. Smith felt a scratching sensation again when he was on the ground. Defendant hit Smith in the face one more time and then ran.
Smith's brother-in-law drove Smith to the hospital. Smith had a "number of . . . open cuts" that required stitches and staples.
The Court Did Not Err By Admitting Evidence Of
Defendant's Domestic Violence Against A.
Defendant contends the court violated his federal constitutional rights by admitting evidence of his domestic violence against A. We disagree.
Before trial, the court ruled it would exclude evidence of domestic violence defendant perpetrated on A. because it "c[ould]n't ignore the prejudicial value this type of evidence would have." The court warned defense counsel if she "ask[ed] a question on cross-examination that's going to open the door . . . you got to shut it." "If you open a door, [the prosecutor] gets to drive a truck through it."
During cross-examination, defense counsel asked Smith three times in a row whether he formed the intent to confront defendant prior to the fight. Smith responded, "Yes." At an in-chambers conference, the court ruled defense counsel had "opened the door." On redirect examination, the prosecutor asked Smith why he wanted to confront defendant. Smith responded because of a "[p]hysical" "incident that had happened between [defendant] and [A.]" On recross-examination, in response to defense counsel's questioning, Smith explained he had "seen [defendant] grab [A.] in an aggressive . . . way" "a few days prior" to the day in question. On another occasion, he had "seen [A.']s face dripping with blood and two black eyes," but he did not know what had happened since he was not there.
Defendant contends the court erred in ruling defense counsel "opened the door" to the admission of the domestic violence testimony. He cites People v. Gambos (1970) 5 Cal.App.3d 187, in support of his argument. There, the appellate court noted the "'open the door' . . . argument is 'a popular fallacy.'" (Id. at p. 192.) It explained as follows: "By allowing objectionable evidence to go in without objection, the non-objecting party gains no right to the admission of related or additional otherwise inadmissible testimony." (Ibid.)
Here, the domestic violence evidence was not "inadmissible." Rather, the court excluded it after finding it unduly prejudicial under the balancing test in Evidence Code section 352. The court warned defense counsel its ruling could change if defense counsel's questions made the evidence relevant and not unduly prejudicial. This is what happened. Defense counsel asked three times whether Smith formed the intent to "confront" defendant prior to their fight. The inference to be drawn was one regarding Smith's emotional state, i.e., he planned the attack on defendant, and defendant was therefore just defending himself. At this point, it was appropriate for the prosecutor to supply the context and ask what the confrontation was about to explain or rebut any adverse inference.
Our Supreme Court has ruled questions asked by the prosecutor on redirect examination that elicited evidence the defendant's girlfriend was living elsewhere because of defendant's "drug" business as opposed to just "some business" was "appropriate" because it supplied the context for the questions posed on cross-examination. (People v. Cleveland (2004) 32 Cal.4th 704, 745-746.) "Redirect examination's 'principal purposes are to explain or rebut adverse testimony or inferences developed on cross-examination, and to rehabilitate a witness whose credibility has been impeached.'" (Id. at p. 746.) Here, the prosecutor's redirect examination properly fulfilled the function of explaining adverse inferences developed on cross-examination. There was no error, constitutional or otherwise, in admitting the domestic violence evidence.
The Court's Instructions On Self-Defense Were Adequate
Defendant contends the court violated his federal constitutional rights by "erroneously omitt[ing] an important part" of the instructions about an aggressor's right of self-defense. According to A.'s trial testimony, Smith told A. defendant hit him first and "after a while, . . . [Smith] had [defendant] pinned against a car and then had him in a choke hold, and then [defendant] ran after that." As we explain, while defendant is correct that a bracketed portion of one of the self-defense instructions was omitted, the substance of the omitted portion was covered in another instruction, thereby completing the self-defense instructions.
The part that was omitted came from the bracketed portion of CALCRIM No. 3471, "Right to Self-Defense: Mutual Combat or Initial Aggressor." The omitted bracketed portion of CALCRIM No. 3471, read as follows: "If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant has the right to defend (himself/herself) with deadly force and was not required to try to stop fighting." (CALCRIM No. 3471.)
The non-bracketed portion of the instruction, which the court gave, read as follows:
"A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only, one, if he . . . actually and in good faith tries to stop fighting; two, he indicates by word or by conduct to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; and, three, he gives his opponent a chance to stop fighting.
"If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight."
The failure to give the bracketed portion of CALCRIM No. 3471 was not error because its substance was adequately covered by another instruction, CALJIC No. 5.54. As given by the court, that instruction read as follows: "If the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense." This court has held, "[w]hen a jury is properly instructed on applicable rule of law, it is not necessary to restate the rule in another way." (People v. Sawyer (1967) 256 Cal.App.2d 66, 75.)
Defendant argues the quoted portion of CALJIC No. 5.54 was problematic because it was part of "one long narrative" that sent "conflicting messages" to the jury.
To put defendant's argument in context, we provide the entire version of CALJIC No. 5.54 read to the jury:
"The right of self-defense is only available to a person who initiated an assault, if, one, he has done all of the following:
"A, he has actually tried in good faith to refuse to continue fighting; B, he has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and, C, he has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting.
"After he has done these three things, he has the right to self-defense if his opponent continues to fight.
"If the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense."
Defendant's argument the provisions of CALJIC No. 5.54 as given "contradict each other," is wrong. Rather, they provided two means by which the jury could find that an aggressor had the right to self-defense. The first was by (A) trying in good faith to refuse continuing fighting; (B) causing his opponent to be aware he wanted to stop fighting; and (C) causing his opponent to be aware that he stopped fighting. The second was by using reasonably necessary force if the victim of the simple assault responded in a sudden and deadly counterassault. There was nothing confusing or erroneous about this instruction, and it adequately covered the concept of self-defense by an aggressor.
III There Was No Cumulative Error
Defendant contends "even if the errors discussed in [his] first two arguments were not sufficient individually to require reversal, their cumulative effect should be." Defendant is wrong because we rejected his claims of error.
The Court Properly Refused An Evidentiary Hearing
On Defendant's New Trial Motion
Defendant contends the court violated his federal constitutional rights by refusing an evidentiary hearing on his new trial motion. Defendant is wrong.
Defendant's new trial motion alleged "juror misconduct," because the foreperson "intimidat[ed] and forced" Juror No. 1 into finding defendant guilty. According to Juror No. 1's declaration, the foreperson "had her opinion and she basically forced it on the other jurors. As people began to side with her, they would then drill the next juror until we all finally agreed. It was very uncomfortable and intimidating." Defendant requested a hearing so that Juror No. 1 could be questioned. The court ruled: "The motion for hearing is denied, and the motion for new trial is denied."
Defendant argues the court should have held a hearing on the new trial motion because "the trial court could have gotten a much better picture of the allegations if it listened to the testimony of Juror #1, the foreperson, and perhaps some other jurors about what was said or what happened in the jury room."
The trial court did not abuse its discretion in refusing to hold an evidentiary hearing. (See People v. Hedgecock (1990) 51 Cal.3d 395, 415 [standard of review].) An evidentiary hearing should be held only when the defense comes forward with evidence demonstrating a "strong possibility" "prejudicial misconduct" has occurred and there is a "material conflict" in the parties' evidence that can be resolved only by such a hearing. (Id. at p. 419.) Here, the evidence defendant presented to support the new trial motion was Juror No. 1's declaration, which was inadmissible because it delved into the jurors' mental processes and subjective considerations that influenced the verdict. (Evid. Code, § 1150, subd. (a); People v. Peavey (1981) 126 Cal.App.3d 44, 51 [a juror's statement "she believed appellant to be not guilty but only voted guilty because the rest of the jurors did so," was inadmissible to impeach the verdict because it "was demonstrative only of her mental processes and the subjective considerations which influenced her verdict"].)
The prohibition on evidence of a juror's mental processes serves to prevent jury harassment and prevent "'destruction of all frankness and freedom of discussion and conference'" during jury deliberations. (Tanner v. United States (1987) 483 U.S. 107, 120 [97 L.Ed.2d 90, 106].) The rule protecting jury deliberations from "intrusive inquiry" does not deprive a defendant of his "Sixth Amendment interests in a unimpaired jury" because those interests are protected by voir dire and the observations of the jury by the court, counsel, and court personnel. (Id. at p. 127 [97 L.Ed.2d at p. 110].) Accordingly, there was no error, constitutional or otherwise, in the court's refusal to hold an evidentiary hearing.
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. MURRAY , J.
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