Opinion
A149158
09-11-2018
THE PEOPLE, Plaintiff and Respondent, v. FIDEL BUENO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR179747)
Fidel Bueno appeals his convictions, following a jury trial, for corporal injury and criminal threats. He argues the trial court erred in admitting certain evidence and the prosecutor committed prejudicial misconduct during closing arguments. We affirm.
PROCEDURAL BACKGROUND
Appellant was charged by information with attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 1); corporal injury to the mother of his child, Vanessa Villanueva (§ 273.5, subd. (a); count 2); criminal threats (§ 422) against Villanueva (count 3), Cedric Guerin (count 4), and Melissa Louthan (count 6); and attempted criminal threats against Jake Lenning (§§ 422, 664; count 5). As to counts 1 and 2, the information alleged appellant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
All undesignated section references are to the Penal Code.
A jury found appellant guilty of infliction of injury to Villanueva (count 2) and found true the great bodily injury allegation as to this crime. The jury also found appellant guilty of criminal threats against Guerin and Louthan (counts 4 and 6), and attempted criminal threats against Lenning (count 5). The jury found appellant not guilty of attempted murder (count 1) and criminal threats against Villanueva (count 3). The trial court sentenced appellant to an aggregate prison term of eight years eight months.
FACTUAL BACKGROUND
Prosecution Case
Late on the evening of May 6, 2016, police officer Jason Barrera was dispatched to a commercial parking lot to investigate a physical fight. Officer Barrera found Vanessa Villanueva sitting on the ground, crying and hysterical. She had a large bump on the side of her head and her mouth was bleeding. Villanueva told Officer Barrera the following: she had been out drinking with appellant, her boyfriend and the father of her child. As they were driving, they got into an argument. Appellant punched her, told her she was going to die, and strangled her until she lost consciousness. Appellant pulled into a parking lot and Villanueva exited the vehicle. She attempted to walk toward three bystanders, but appellant stopped her and told the bystanders not to approach or he would kill them. Appellant left the parking lot before Officer Barrera arrived.
Cedric Guerin was walking by the parking lot when he saw a car pull in. Appellant got out of the car, pulled Villanueva out, threw her on the ground, and punched her hard two or three times. Guerin told appellant to leave the woman alone, and appellant told him to keep walking or appellant would kill him. There was no one else around at the time, and Guerin was afraid. Then another car stopped and Guerin told the female driver to call the police. Guerin testified that, when this car arrived, appellant was no longer punching Villanueva. A male passenger got out, stood near Guerin, and asked if Villanueva was okay. Appellant told the two men that he would knock their teeth out if they did not leave. Appellant then left.
Melissa Louthan was driving with Jake Lenning when she saw a commotion in a parking lot and heard a woman scream. Louthan pulled into the parking lot and saw appellant repeatedly hitting Villanueva in the face. Louthan and Lenning got out of the car and yelled at appellant to stop, and Louthan began to call the police. Villanueva was sitting on the ground, crying uncontrollably, shaking, and bleeding from the mouth. Another man was nearby, and appellant told the group of them if they did not mind their own business he would kill them. At one point, Lenning, about five feet from Villanueva, bent to ask if she was okay. Appellant hit Villanueva a few more times and started dragging her towards his car, then left her and drove off.
Vanessa Aguiniga, a friend of Villanueva, testified that Villanueva told her, within two days of the incident, that appellant had slammed her head into the car window and dashboard, strangled her until she blacked out, and told her he was going to kill her. A doctor and a nurse who treated Villanueva the night of the incident, and an officer who interviewed Villanueva the following day, all testified Villanueva told them her boyfriend had hit and strangled her. However, Villanueva told Aguiniga that at the preliminary hearing she testified appellant only held her down and that it was her fault. When Aguiniga asked Villanueva why she lied in her testimony, she said she was afraid of what appellant's family and friends would do to her if she told the truth.
At trial, Villanueva testified she was very drunk on the night of the incident. On the way home, she and appellant argued. Villanueva began hitting appellant and tried to jump out of the car. Appellant grabbed her and held her down to keep her from hitting him and from jumping out of the car. He did not punch, strangle, or threaten her. When appellant pulled into the parking lot, Villanueva got out and sat down on the curb. Appellant did not threaten any bystanders, although he may have told them to mind their own business.
Dr. Linda Barnard, a licensed marriage and family therapist, testified as an expert in domestic violence and its effect on victims. There is a common cycle to domestic violence, during which tensions increase until an episode of extreme violence occurs, followed by a honeymoon period during which the abuser apologizes and promises to stop. 75 to 80 percent of women who report domestic violence to law enforcement subsequently recant, often because of fear of retaliation.
An expert in strangulation testified that strangulation can cause serious injuries and death. Photographs of Villanueva taken on the night of the incident showed injuries consistent with strangulation.
Defense Case
Appellant's sister, longtime friend, former father-in-law, ex-wife, and eight-year-old daughter, and Villanueva's grandmother all testified that appellant was honest and nonviolent. Appellant's sister also testified she had seen Villanueva slap and scratch appellant; he would just walk away when she did.
Appellant testified that on the night of May 6, he and Villanueva went out drinking and began arguing on the way home. As he drove, Villanueva started hitting him, kicking, and trying to open the car door. Appellant held Villanueva down and pulled into the parking lot. Villanueva got out of the vehicle, and tripped and fell. Appellant tried to help her up and Guerin told him to leave her alone. Appellant told Guerin to mind his own business, but did not threaten him. Appellant did not threaten Louthan or Lenning. Lenning came between appellant and Villanueva to make sure she was all right. Appellant did not challenge Lenning, who "was a lot bigger than me" and "probably would have beat me up."
DISCUSSION
I. Jake Lenning's Statements
Appellant argues the admission of hearsay statements of Jake Lenning violated his confrontation clause rights and prejudiced him with respect to the great bodily injury enhancement and the three criminal threat convictions. We find any error harmless.
A. Background Facts
At trial, Officer Barrera testified that he spoke with Jake Lenning on the night of the incident. Lenning had said he "observed a vehicle in the parking lot and then an altercation between a male and a female. He was with another male and female. They observed the male attacking the female and as they approached they were confronted by the male who told them to stay back, don't approach any further -- if they got any closer that he would kill them. [¶] Mr. Lenning kept his distance but continued to yell for him to stop attacking the female, and eventually the male left the scene in the vehicle." Lenning told Officer Barrera that he did not approach any closer because he "was afraid that the male would attack them."
The trial court overruled defense counsel's hearsay objection, finding the statements spontaneous.
The day after this testimony, the prosecutor informed the court she was unable to subpoena Lenning and he would not testify at trial. Defense counsel argued the admission of Lenning's statement to Officer Barrera violated his confrontation clause rights, and asked the testimony be struck and the jury admonished. The trial court ruled most of Lenning's statement was nontestimonial. The trial court found Lenning's statement that he did not come closer to appellant and Villanueva because he was afraid appellant would attack him was testimonial and admonished the jury to disregard it.
B. Analysis
The parties dispute whether the trial court erred in finding Lenning's statement to Officer Barrera nontestimonial. We need not decide the issue because we find any error harmless beyond a reasonable doubt. (People v. Penunuri (2018) 5 Cal.5th 126, 158 (Penunuri) ["A violation of the confrontation clause is harmless if the court can conclude beyond a reasonable doubt that it did not affect the verdict."].)
1. Great Bodily Injury
Appellant first argues Lenning's statements were prejudicial with respect to the great bodily injury enhancement. Appellant argues the not guilty verdicts on the attempted murder and criminal threat to Villanueva charges indicate the jury did not believe Villanueva's out of court statements to law enforcement and others. Even so assuming, Guerin and Louthan testified they witnessed appellant hitting Villanueva multiple times Guerin testified appellant pulled Villanueva out of the car and threw her on the ground, and Louthan testified appellant dragged her partway back towards the car. Lenning's statement to Officer Barrera—that he saw appellant "attacking" Villanueva—was cumulative of the properly-admitted testimony of Guerin and Louthan.
Appellant contends Guerin's testimony that appellant pulled Villanueva from the car and punched her two to three times "could not support a finding of the infliction of great bodily injury"; there was a "serious conflict" between Guerin's testimony and Louthan's testimony because Guerin testified appellant stopped hitting Villanueva before Louthan and Lenning arrived, while Louthan testified she witnessed appellant strike Villanueva; and Lenning's statement corroborated Louthan's version and therefore "broke that tie." We disagree. First, both Guerin and Louthan testified appellant struck Villanueva multiple times; Guerin testified appellant pulled her out of the car and threw her to the ground, while Louthan testified he dragged her partway to the car. If, as appellant concedes, Louthan's testimony could support a great bodily injury finding, Guerin's equally could do so. Second, appellant overstates the conflict between Guerin and Louthan's testimony. Guerin's testimony as to when appellant stopped striking Villanueva was equivocal: he testified that appellant did not strike Villanueva after Louthan and Lenning arrived, "[t]hat I recall." The testimony of Guerin and Louthan was consistent in all material respects and, significantly, both were passersby with no apparent bias or motivation to lie. Lenning's brief statement to Officer Barrera added little, if anything, to their testimony. We conclude any error in the admission of Lenning's statement was harmless beyond a reasonable doubt on the great bodily injury enhancement. (See Penunuri, supra, 5 Cal.5th at p. 158 [confrontation clause errors "were harmless beyond a reasonable doubt because [the testimony] added little if anything to the properly admitted evidence"].)
2. Criminal Threats
Appellant argues Lenning's statement that he did not approach appellant and Villanueva because he was afraid appellant would attack him was prejudicial with respect to the three criminal threat convictions. The trial court agreed that this statement was improperly admitted and instructed the jury to disregard it. Appellant argues the limiting instruction, coming two days after Officer Barrera's testimony about the statement, was ineffective. "We reject as entirely speculative defendant's assertion that the[] limiting instruction[] w[as] inadequate. 'Any prejudice that the challenged information may have threatened must be deemed to have been prevented by the court's limiting instruction to the jury. We presume that jurors comprehend and accept the court's directions.' " (People v. Homick (2012) 55 Cal.4th 816, 866-867 (Homick).) Appellant's reliance on Bruton v. U.S. (1968) 391 U.S. 123, is unavailing. " 'Bruton recognized a narrow exception to the general rule that juries are presumed to follow limiting instructions' " in cases involving a " ' "nontestifying codefendant's extrajudicial self-incriminating statement that inculpates the other defendant . . . ." ' " (Homick, at p. 874.) No such statement is implicated here.
II. Prior Assault Conviction
Appellant contends the trial court abused its discretion in admitting for impeachment purposes appellant's ten-year-old conviction for assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)). We need not decide whether the admission was an abuse of discretion because any error was harmless.
Appellant argues the evidence was prejudicial with respect to the great bodily injury enhancement "because it allowed the jury to conclude that appellant had a propensity for serious violence" and allowed the prosecutor to undermine two of appellant's character witnesses—his ex-father-in-law and Villanueva's grandmother—because appellant testified they were not aware of the conviction. We disagree. First, the jury was properly instructed regarding the prior conviction: "If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness's testimony." We presume the jury followed this limiting instruction. (Homick, supra, 55 Cal.4th at pp. 866-867.) Second, as discussed in part I.B.1, ante, even assuming the jury disregarded Villanueva's out-of-court statements to police and others, Guerin and Louthan testified that appellant repeatedly struck Villanueva and either threw her to the ground or dragged her to the car. In addition, Officer Barrera testified Villanueva had a large bump on her head and was bleeding from her mouth, and the emergency room doctor testified she had bruising on her temples and a bump on her head. It is not reasonably probable that, absent the brief testimony of appellant's prior conviction, the jury's finding on the great bodily injury enhancement would have been more favorable to appellant.
Appellant also argues the admission of the prior conviction violated his due process rights. "[T]he admission of evidence in violation of state law may also violate due process, but only if the error rendered the defendant's trial fundamentally unfair." (People v. Merriman (2014) 60 Cal.4th 1, 70.) For the reasons just discussed, appellant fails to show that the evidence "was so prejudicial as to render his trial unfair." (Ibid.)
III. Prosecutor's Closing Argument
Appellant argues the prosecutor committed prejudicial misconduct during closing arguments. We reject the challenge.
As an initial matter, appellant forfeited the claim by failing to object below. "To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. . . . Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal unless such an objection would have been futile." (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) Contrary to appellant's argument, as the discussion below demonstrates, the statements were not so prejudicial as to render an admonition futile.
Even if the challenge were not forfeited, we would reject it. " 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." ' " (Brown, supra, 31 Cal.4th at pp. 553-554.) No such likelihood is shown here. Appellant first points to the prosecutor's statement, after noting the testimony of appellant and Villanueva that Villanueva was the one being aggressive and violent, that "you heard from Dr. Barnard [the domestic violence expert] why you should not believe this testimony, how it's very common for someone who's been the victim of domestic violence to come in and lie under oath and say nothing happened or try and take the blame for it." Appellant argues this was misconduct because Dr. Barnard testified only about domestic violence cases in general and did not opine about Villanueva's conduct or testimony. The argument properly directed the jury to consider Dr. Barnard's testimony about common behavior of domestic violence victims in evaluating Villanueva's testimony. Appellant argues that, even if Dr. Barnard's testimony could be used to evaluate Villanueva's testimony, it had no bearing on appellant's testimony. It is not reasonably likely the jury construed the prosecutor's comment to so suggest.
Second, in discussing criminal threats, the prosecutor argued, "We know that no one was able to get the victim away from Mr. Bueno. They stayed back. They kept their distance after these threats." Appellant argues this was misconduct because the jury had been instructed to disregard Lenning's statement that he stayed back because of fear. The prosecutor's argument was a fair characterization of the testimony of Guerin and Louthan. Guerin testified that he stood six or seven feet from appellant, and that when Lenning arrived he stood near Guerin. Louthan testified she stayed back and Lenning did not approach closer than four or five feet.
Finally, the prosecutor argued: "As Dr. Barnard described to you, victims of domestic violence often don't hold their abuser accountable. That's my job and that's your job." Appellant argues this inappropriately appealed to the jury to help solve a pressing social problem. The statement followed a discussion of why the jury should credit Villanueva's out-of-court statements and discredit her trial testimony, and is most reasonably construed as part of the prosecutor's explanation why Villanueva's trial testimony was not credible.
Appellant contends the cumulative effect of errors denied him a fair trial. We have either rejected appellant's claims of error or found that any assumed errors were not prejudicial. "Viewed as a whole, such errors do not warrant reversal of the judgment." (People v. Stitely (2005) 35 Cal.4th 514, 560.) --------
DISPOSITION
The judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.