Opinion
A154640
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. EDDIE A. PERALES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR181377)
Eddie A. Perales appeals following his convictions for mayhem and related counts. We remand on two sentencing issues but otherwise affirm.
BACKGROUND
Prosecution Case
Law Enforcement Evidence
On the afternoon of September 25, 2016, in response to an anonymous 911 telephone call, police officers arrived outside appellant's home. The officers' body cameras recorded the following statements made at the scene by appellant's adult stepdaughter, Rosa B., and two of her children, 17-year-old Elijah P. and 12-year-old Eddie P. Rosa told police she and appellant got into an argument related to Eddie's schooling. When Rosa tried to leave, appellant "got in [her] face" and Rosa threw a glass of water at him. He punched her in the head, knocking her to the ground, and continued punching her as she tried to get up. She felt dizzy and her ear dripped a lot of blood. Elijah and appellant then began hitting each other. Elijah told police Rosa and appellant were arguing about Eddie's schooling. Elijah saw Rosa throw a glass of water at appellant and appellant hit Rosa, splitting her ear. Elijah started hitting appellant in the face, injuring him in the lip and elsewhere, and appellant hit Elijah. Eddie told police appellant shoved and punched Rosa, Elijah punched appellant in the face, and appellant punched Elijah.
Excerpts from these recordings were played for the jury and transcripts were provided.
Police testified that Eddie probably heard some of Rosa's statements to police before he talked to the police, but Elijah talked to police without having heard Rosa's statements.
Police officers testified that the top of Rosa's ear was split open and bleeding, and Elijah had a visible injury on his lip. Photographs of appellant taken by police that day show minor injuries in multiple locations on his face.
Eyewitness Trial Testimony
At trial, Rosa testified that she did not remember many details from that day and testified, "I don't really care no more what happened actually. . . . That's just a family thing, a family issue that happened," and "I just want our family to get back together like it was." She remembered that she and appellant argued about Eddie's schooling, and appellant and Rosemary Perales—appellant's wife and Rosa's mother—tried to get Rosa to leave their house. At some point during the dispute, Rosa threw a glass of water and an aerosol plastic or metal air freshener bottle at appellant's face. Appellant put his hands on Rosa to try and push her toward the door, and in "trying to get away from them . . . I believe I hit the side of my head on the door" or an adjacent dresser. Rosa initially testified she did not remember if appellant punched her, but later testified he did not hit her. She did not see appellant hit Elijah. When Rosa talked to police, she thought appellant had hurt her ear and because she was angry at appellant she exaggerated and lied. She later realized her injury was because she fell.
To avoid confusion, we refer to Rosemary by her first name. No disrespect is intended.
Elijah testified he heard appellant and Rosa arguing and saw blood on his mother's ear and head. He did not remember how Rosa got injured, he did not remember how he got a cut on his lip, and he did not remember telling officers that appellant hit Rosa and caused his lip injury. He was high on marijuana at the time and lied to the police because he was mad, scared, and trying to protect his mother. He did not see appellant hit Rosa, appellant did not hit him, and he did not hit appellant.
Eddie testified that he heard appellant and Rosa argue and saw Rosa throw a cup of water at appellant. He did not know how Rosa injured her ear and did not remember telling police that appellant punched Rosa. He did not see appellant hit Rosa or Elijah.
Defense Case
Three character witnesses testified on appellant's behalf: a neighbor, who had known him for 20 years; appellant's landlord, who had known him for five years; and appellant's employer, who had known him for five or six years. All considered appellant to be honest and truthful.
Rosemary testified that she and appellant had been married for about 30 years. On the day of the incident, Rosa became angry at appellant and threw a hard plastic cup of ice and water at appellant's back. Appellant and Rosemary "tried to escort her out" of the house by gently pushing her forward. Rosa was "stumbling and wrestling and hitting against everything." Near the front door, Rosa grabbed an air freshener canister and threw it at appellant's face, giving him a black eye, a bump on the head, and injuries to different parts of his face. Rosa injured her ear when she tripped and hit her ear somewhere—Rosemary could not remember where—while struggling and trying to stay inside the house. Although Rosemary remembered telling police on the day of the incident that appellant hit Rosa, it was a misstatement because she was confused, and appellant in fact had not hit Rosa or Elijah.
Appellant testified in his own defense. On the day of the incident, Rosa began yelling at appellant and Rosemary. They tried to get Rosa to leave the house, but Rosa threw a large plastic insulated cup filled with water and ice at the back of appellant's head, injuring him behind the ear. Appellant and Rosemary tried to get Rosa out of the house by gently pushing and escorting her forward. Rosa was flailing and jumping up and down. Near the front door, she grabbed an air freshener and threw it at appellant, causing multiple injuries to his face. He did not know how or where Rosa injured her ear, but thought she could have hit her ear on a door or shelf when she was jumping and bouncing around. Appellant did not punch either Rosa or Elijah.
Verdict and Sentence
The jury convicted appellant of mayhem (§ 203), battery causing serious bodily injury (§ 243, subd. (d)), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), all with respect to Rosa. As to the mayhem and assault counts, the jury found true an allegation that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury found appellant not guilty of a charge of battery (§ 243, subd. (a)) with respect to Elijah. In a bifurcated proceeding, appellant admitted several prior conviction allegations. The trial court sentenced appellant to an aggregate unstayed prison term of 52 years to life.
DISCUSSION
I. Accident Instruction
Appellant argues the trial court erred in denying his request for CALCRIM No. 3404, which would have instructed the jury as follows: "The defendant is not guilty if he acted without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty unless you are convinced beyond a reasonable doubt that he acted with the required intent."
" 'To say that it is a defense that the criminal conduct or omission was committed by a non-negligent accident, is simply to say that all result element offenses [i.e., offenses that require an intent to produce a particular result] require at least proof of negligence as to causing the prohibited result. This is already made clear by the culpability requirements of specific offense definitions . . . .' " (People v. Anderson (2011) 51 Cal.4th 989, 997 (Anderson); see also id. at p. 998 [" 'The accident defense amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.' "].) "A trial court's responsibility to instruct on accident therefore generally extends no further than the obligation to provide, upon request, a pinpoint instruction relating the evidence to the mental element required for the charged crime." (Id. at p. 997, italics omitted.) "A trial court must give a pinpoint instruction, even when requested, only if it is supported by substantial evidence." (People v. Ward (2005) 36 Cal.4th 186, 214.)
Assuming substantial evidence supported the instruction, we find any error harmless. "[T]he trial court's failure to give a pinpoint instruction . . . is judged as state law error that is prejudicial only where there is a reasonable probability of a more favorable result." (People v. Sandoval (2015) 62 Cal.4th 394, 421-422.) First, appellant does not dispute that the jury was properly instructed on the mental states required for conviction. Our Supreme Court has found error in failing to give a pinpoint instruction harmless by reasoning that the jury was properly instructed on the relevant element. (See People v. Hughes (2002) 27 Cal.4th 287, 363 [finding harmless any error in failing to give pinpoint instruction on intent, in part because "the jury was properly instructed concerning the intent element"]; People v. Wharton (1991) 53 Cal.3d 522, 572 [finding harmless error in failing to give pinpoint instruction on provocation, in part because "the jury was otherwise given comprehensive instructions on provocation and heat of passion"].) Appellant's reliance on People v. Acosta (1955) 45 Cal.2d 538 is unavailing. Acosta found the erroneous failure to instruct on accident prejudicial, even though the jury was properly instructed on intent, reasoning: "defendant was entitled to the instruction as to accident and misfortune in the terms or substance in which he requested it so that the jury's attention would be directed to the possible, reasonable view of the evidence urged by defendant." (Id. at p. 544.) It is apparent from Acosta's analysis that it does not apply the prejudice standard articulated in People v. Watson (1956) 46 Cal.2d 818—a case that did not issue until after Acosta. As the more recent Supreme Court cases cited above make clear, the provision of other instructions on the issue is highly relevant in determining prejudice.
We reject appellant's contention that the prejudice standard for federal constitutional error applies because the refusal to instruct deprived appellant of his right to present a complete defense. The accident defense " 'is already made clear by the culpability requirements of specific offense definitions' " (Anderson, supra, 51 Cal.4th at p. 997), and the court's ruling did not preclude appellant from arguing the defense to the jury.
In his prejudice argument, appellant cursorily suggests another instruction "could well have diluted the intent requirements for mayhem in the eyes of the jury." Because he does not separately challenge this instruction as erroneous, we presume it was a proper instruction. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 ["[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment."]; Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 ["When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited."].)
Second, as appellant concedes, trial counsel argued the point to the jury, albeit briefly. Appellant argues that the trial court's refusal to instruct "may have constrained appellant's trial counsel from vigorously arguing an accident theory" in closing, but provides no basis in the record to support this speculation. Finally, the statements of Rosa, Elijah, and Eddie captured on the police body cameras were substantially more credible than their highly evasive trial testimony. We find no reasonable probability that the outcome would have been more favorable had the trial court issued the requested instruction.
II. Ineffective Assistance of Counsel
During his testimony, appellant acknowledged prior convictions for robbery and assault with a deadly weapon in 1980, assault with a deadly weapon in 1990, and two counts of robbery in 1998. Appellant argues his trial counsel rendered ineffective assistance by failing to request an instruction that the jury could only consider his prior convictions for purposes of evaluating the credibility of his testimony. Appellant refers to CALCRIM No. 316, which provides, in relevant part, "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." The bench notes provide, "If a felony conviction or other misconduct has been admitted only on the issue of credibility, give the bracketed word 'only.' "
" 'To establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him.' [Citation.] 'If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.' " (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053 (Hernandez).)
Numerous appeals have rejected similar ineffective assistance claims where the record is silent as to why trial counsel failed to request the limiting instruction, reasoning that " '[a] reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.' " (Hernandez, supra, 33 Cal.4th at p. 1053; see also People v. Hinton (2006) 37 Cal.4th 839, 878 ["Defendant also complains that counsel's failure to request a limiting instruction concerning his prior murder conviction demonstrated ineffective assistance, but counsel may have deemed it unwise to call further attention to it."]; People v. Bonilla (1985) 168 Cal.App.3d 201, 206 ["The record does not show why [a limiting instruction on the use of a prior conviction] was not requested. It may well be that trial counsel did not want such an instruction, believing that it would emphasize the prior conviction. Since the record is silent on counsel's reasoning and a satisfactory explanation exists for not making the request, the case must be affirmed on appeal."].)
The reasoning in these cases applies equally here. We note that, as the People argue, appellant's prior convictions were in fact admitted for more than just appellant's credibility: they were also used to impeach his character witnesses, who were each asked whether appellant's convictions changed their opinion of his character. (See People v. Marsh (1985) 175 Cal.App.3d 987, 992-993 ["the prosecution was . . . entitled to ask Marsh's character witnesses about his or her knowledge of the prior [conviction] to impeach their opinions"].) Appellant thus would not have been entitled to an instruction that the jury could only consider his prior convictions to evaluate his credibility (see Bench Notes to CALCRIM NO. 316), instead, the instruction would have explained both uses for the convictions. Because the instruction would "explain how [the evidence] could be used as well as how it could not be used . . . , defense counsel might reasonably have concluded it [was] best if the court did not explain how the evidence could be used." (Hernandez, supra, 33 Cal.4th at p. 1053.)
III. Late Discovery Instruction
Appellant argues the trial court erred in giving a late discovery instruction regarding a defense exhibit.
During the prosecution's case-in-chief, defense counsel informed the court and the prosecutor that Rosemary, appellant's wife, brought in an air freshener cannister. Counsel represented that Rosemary would testify it was the same air freshener that Rosa threw at appellant (and Rosemary subsequently did so testify). When the prosecutor requested a late discovery instruction (CALCRIM No. 306), defense counsel objected, arguing he had shown the evidence to the prosecutor as soon as he received it and had not known the evidence existed earlier. The trial court overruled the objection and instructed the jury: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] The attorney for the defense failed to disclose the alleged air freshener . . . within the legal time period[.] [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. [¶] However, the fact that the defendant's attorney failed to disclose evidence within the legal time period is not evidence that the defendant committed a crime."
The instruction was also given with respect to other evidence, but appellant only challenges it as applied to the air freshener.
We need not decide whether the instruction was given in error because any error was harmless. Error in providing a late discovery instruction is reviewed for prejudice under the state law standard. (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7.) Appellant argues evidence that Rosa threw an air freshener canister at appellant "was crucial to appellant's argument to the jury that appellant acted in self-defense." But appellant fails to explain how the air freshener itself was crucial—as opposed to the testimony about the air freshener, which was not impacted by the instruction. Absent any argument that the air freshener itself was significant in this defense—for example, because of its size or weight, or any impact marks or blood—appellant fails to demonstrate prejudice.
Appellant contends the instruction's characterization of the air freshener as the "alleged" air freshener "undoubtedly prejudicially conveyed to the jury that the trial court questioned the authenticity of the item." It is not reasonably likely the jury so construed the instruction. Instead, they likely understood "alleged" to refer to the factual dispute over whether the air freshener was in fact the one that Rosa threw at appellant. (See People v. Stone (2008) 160 Cal.App.4th 323, 331 ["if a jury instruction appears ambiguous, ' "we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction" ' "].)
IV. Sentencing
The trial court imposed four consecutive five-year terms for appellant's prior serious felony convictions (§ 667, subd. (a)(1)). "Effective January 1, 2019, section 1385 was amended to eliminate the prohibition against striking a five-year enhancement for a prior serious felony under section 667. The result is courts now have discretion to strike a five-year enhancement. The amendment applies retroactively to all cases not final on its effective date." (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.) Appellant argues he is entitled to a remand of the prior serious felony enhancements to enable the trial court to exercise its newly-granted discretion, and the People properly agree. We will remand these enhancements.
The trial court included a three-year great bodily injury enhancement when calculating the mandatory minimum term for mayhem under the Three Strikes Law (§ 667, subd. (e)(2)(A)(iii)). Appellant argues this was error because great bodily injury is an element of mayhem. The People properly agree. (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559-1560 ["great bodily injury as defined in Penal Code section 12022.7 is an element of mayhem and the enhancement for great bodily injury is inapplicable"].) We will accordingly remand for resentencing.
DISPOSITION
The matter is remanded for the following limited purposes: (1) to allow the trial court to exercise its discretion to strike the section 667, subdivision (a)(1) enhancements; and (2) for resentencing that excludes the three-year section 12022.7 great bodily injury enhancement when determining the mandatory minimum term for mayhem under section 667, subdivision (e)(2)(A). The judgment is otherwise affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BURNS, J.