Opinion
A128916
11-07-2011
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALBERTO CARRANZA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC067228A)
Carlos Alberto Carranza appeals from a judgment upon a jury verdict finding him guilty of felony battery with serious bodily injury (Pen. Code, § 243, subd. (a)) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). The jury found that defendant did not inflict great bodily injury during the commission of the battery offense within the meaning of section 1192.7, subdivision (c)(8). He contends that the trial court erred in denying his motion for acquittal under section 1118.1 because there was insufficient evidence to support the jury's finding of the serious bodily injury element of the battery offense. He also argues that the court abused its discretion in denying his request to introduce the preliminary hearing testimony of Deputy Sheriff Stephanie Josephson. We affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
On December 29, 2007, Joe Frater was working as the food and beverage manager in the pub area of the Crystal Springs Golf Course in San Mateo County. A banquet room where wedding receptions are held is located in a separate room adjacent to the pub. Although the two rooms are separate and there is no mixing of patrons from one to the other, the banquet room can be accessed from the pub through a set of French glass doors that open in only one direction—from the pub into the banquet room. At approximately 4 p.m., Frater noticed that someone on the banquet room side was trying to force the French doors open. He went to the doors and opened the right one about a foot and a half and said, " 'You're going to break down the door.' " He turned to go back into the pub when defendant hit him in his right eye. Robyn Brown, the wedding director, saw the incident, though she could not hear what defendant and Frater were yelling. Defendant left the pub and went outside and picked up a metal golf shoe cleaner and then approached Frater, saying " 'Do you want some more?' " Frater told defendant that he was going to call the police. Defendant then left the area. Frater's eye bled from a cut above his eye and began to swell.
The shoe cleaner, which weighs about 40 pounds, was outside the pub and used by the golfers to clean their shoes before entering the pub.
At approximately 5:06 p.m., the police were dispatched to a house in South San Francisco due to a report that someone might be the victim of alcohol poisoning. When they arrived, they found defendant to be very combative, rambunctious, and "bordering on violent," resulting in an officer having to use a Taser on him to subdue him. Defendant was taken away from the house by ambulance.
Frater was examined by paramedics at the scene and went home. He went to see his doctor at Kaiser on December 31, 2007, once the swelling in his eye began to subside. Frater noticed that he had blurred vision and a blind spot in the right top area of his eye. A few days later he saw another doctor who referred him to Dr. Moshfeghi, a retina specialist. Frater saw Dr. Moshfeghi on January 11, 2008, and complained of blurred vision and a blind spot in his right eye.
Dr. Moshfeghi found that Frater had traumatic vitreous separation indicating a positive Weiss screen where the jelly attached to the back of the eye separates, a chorioretinal scar, and cystoid macular edema in the right eye. With this diagnosis, Dr. Moshfeghi was concerned that there was a predisposition for a retinal tear, but overall opined that Frater would be all right as his vision was 20/40. Frater returned to see Dr. Moshfeghi on February 27, 2008. Dr. Moshfeghi found Frater's vision to be the same although Frater continued to complain of blurred vision. Frater saw Dr. Moshfeghi again on April 2, 2008. At this point, Frater's vision had declined to 20/100. Dr. Moshfeghi attributed the decline in vision to the blunt force trauma Frater sustained to his right eye. No treatment is available for Frater's condition.
DISCUSSION
Defendant contends that the trial court abused its discretion in denying his section 1118.1 motion for acquittal which sought dismissal of the serious bodily injury element of the battery charge on the ground of insufficiency of the evidence. He argues that there was more than one reasonable explanation for the cause of Frater's vision loss, and under the circumstantial evidence instruction, CAL CRIM No. 224, the jury would have been required to accept the one pointing to innocence.
He also sought dismissal of the resisting arrest charge below. He has not contested the resisting arrest conviction on appeal.
"The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) On appeal, we independently review the trial court's ruling on the section 1118.1 motion to determine whether the evidence is sufficient to support the conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.)
To establish a battery with serious bodily injury, the prosecution was required to show defendant's use of force or violence against Frater resulted in "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." (§§ 242, 243, subd. (f)(4).) Here, defendant's argument on the motion for acquittal focused on whether defendant's blow to Frater's eye caused serious bodily injury. He argued that there was insufficient evidence of serious bodily injury because Dr. Moshfeghi testified affirmatively, on cross-examination, that there might be other reasonable possibilities for Frater's loss of vision other than the one Dr. Moshfeghi chose.
Defendant's argument is belied by the additional evidence that was before the court. Not only had Dr. Moshfeghi testified that defendant's vision detriment was caused by the force he suffered to his right eye, but Frater testified that he suffered blurred vision and loss of vision following defendant's blow to his eye. Given this evidence, there was substantial evidence of serious bodily injury before the jury to defeat defendant's motion for acquittal.
Defendant's suggestion that the circumstantial evidence instruction, CALCRIM No. 224, required the court to grant his motion for acquittal because there was more than one reasonable interpretation of the circumstantial evidence presented is misguided. CALCRIM No. 224 provides: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." The instruction informs the jury that before it can rely on circumstantial evidence to prove a necessary fact, it must first be convinced beyond a reasonable doubt that the People have proved each fact essential to that conclusion. (See CALCRIM No. 224.) The instruction is thus considered favorable to the defense, because it tells the jury that it may not rely on circumstantial evidence unless the only reasonable conclusion drawn from the evidence points to guilt. (People v. Magana (1990) 218 Cal.App.3d 951, 955 [discussing CALJIC No. 2.01, the former instruction on the sufficiency of circumstantial evidence].) Here, utilizing CALCRIM No. 224, the jury necessarily would have accepted the People's direct evidence that defendant's act in hitting Frater's eye caused the injury and vision loss prior to considering any circumstantial evidence corroborating that fact. The instruction, however, was not pertinent to the court's consideration of defendant's motion for acquittal. (See People v. Towler (1982) 31 Cal.3d 105, 117-118 [holding that the circumstantial evidence instruction is simply for the guidance of the trier of fact; whether the evidence is direct or circumstantial, the relevant standard of review on appeal is the sufficiency of the evidence standard].) In sum, there was sufficient evidence at the close of the People's case that defendant committed a battery with serious bodily injury; the court therefore properly denied defendant's motion for acquittal.
The court instructed the jury pursuant to CALCRIM No. 224.
Defendant also contends that the court abused its discretion in not allowing defense counsel to read the preliminary hearing testimony of Deputy Sheriff Stephanie Josephson because she was out of the country and unavailable. Defense counsel did not seek to secure Josephson's testimony until after the People had rested. At that point, the prosecutor informed him that Josephson was in Australia and would not be available. Defense counsel asked the court for permission to read Josephson's testimony from the preliminary examination transcript or to read a portion of her police report. The prosecutor objected, noting that Josephson was not on the People's list of witnesses, which was provided to counsel two days before Josephson left the country, and that defense counsel had made no efforts to secure or serve a subpoena on her. The court found that Josephson was not legally unavailable and that defendant failed to exercise due diligence to secure her presence for trial.
"Former testimony may be admissible if the witness is unavailable . . . and the proponent 'has exercised reasonable diligence . . . to procure his . . . attendance . . . .' (Evid. Code, § 240, subd. (a)(5).)" (People v. Walton (1996) 42 Cal.App.4th 1004, 1010.) Whether due diligence has been exercised is a question for the trial court; we will not disturb the trial court's ruling on appeal absent an abuse of discretion. (Id. at p. 1011.)
Here, the record demonstrates that defendant did not exercise due diligence. He was aware of Josephson's testimony at the preliminary hearing and her police report well before trial. Had he wished to secure her attendance at trial, he should have subpoenaed her. Defendant was on notice that Josephson was not on the prosecutor's witness list before Josephson departed for Australia; it was not the prosecutor's duty to ensure Josephson's availability at trial. "The defense was responsible for securing the presence of any witness it wanted to call at trial, regardless of whether the prosecution would also be using that witness. If the defense wanted to ensure that Johnson would be available to testify, it could have begun looking for him at any time, without waiting to see whether the prosecution would also call him." (People v. Harrison (2005) 35 Cal.4th 208, 241.)
In any event, the record demonstrates that any error in denying defendant's request to read Josephson's preliminary hearing transcript or her police report was harmless. Josephson's testimony simply corroborated that she interviewed Brown at the scene and that Brown saw defendant, who was intoxicated, "intentionally punch" Frater. Josephson also interviewed Frater who said that during the incident, defendant claimed that Frater had hit him with the door. This latter version of the incident was also reflected in Josephson's police report.
Defendant asserts that Josephson's testimony would have bolstered the credibility of James Misamore, who claimed to have taken notes of a conversation with Frater about the incident based on his past experience as a former reserve police officer. Frater complained to Misamore about the doors only opening one way, told him how he was struck by a single punch to the face, and that he wanted "to prosecute the son of a bitch who hit me." Misamore testified that Frater told him 15 minutes later that he did not wish to press charges because he understood that he hit defendant with the door which could have been construed by him as an attack. Misamore acknowledged that he was the boyfriend of defendant's mother-in-law.
It is not reasonably probable that Josephson's testimony would have bolstered Misamore's account of the incident. Both Frater and Brown testified that defendant hit Frater in the eye, and that the groomsman tried to hold defendant back. Misamore was not a percipient witness; it is likely that the testimony of the witnesses who actually saw the incident would be more persuasive.
Finally, defendant contends that Josephson's characterization of the incident as a misdemeanor in her report, may have persuaded the jury to conclude that the offense was a simple battery. But the jury was informed through the testimony of detective John Corkery, that the offense was initially documented as a misdemeanor in Josephson's report. Josephson's police report would have been cumulative of this fact. And, as the Attorney General points out, Detective Corkery also testified that it was not until he began his investigation of the case that he discovered the extent of Frater's injuries which escalated the offense to a felony. Thus, we discern no possible error in the court's denial of defendant's request to read Josephson's preliminary hearing testimony or her police report to the jury.
We cannot speculate, as does defendant, that the jury's finding that the great bodily injury enhancement was not established indicates that it was close to concluding that the battery offense was a misdemeanor.
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DISPOSITION
The judgment is affirmed.
RIVERA, J. We concur: REARDON, Acting P.J. SEPULVEDA, J.