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People v. Ballesteros

California Court of Appeals, Second District, Third Division
Apr 22, 2009
No. B205323 (Cal. Ct. App. Apr. 22, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. VA102118 John A. Torribio, Judge.

Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.


ALDRICH, J.

INTRODUCTION

A jury convicted defendant and appellant James Ballesteros of assault with a deadly weapon and found true a great bodily injury enhancement. The trial court neglected to instruct the jury with CALCRIM No. 301, which provides that the testimony of a single witness is sufficient to establish a fact. Defendant now contends that the omission constitutes prejudicial error. He also contends that the trial court did not know it had discretion to strike a great bodily injury enhancement, and therefore this matter should be remanded for resentencing. We disagree with these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The prosecution’s case.

On the evening of August 14, 2007, Jose Carbajal went to see his boss, Freddy Hernandez, at his house. Hernandez owed Carbajal money for work Carbajal had done. When Carbajal arrived, Hernandez was with “Joey.” They all drank beer while sitting on the porch. Carbajal got drunk. Carbajal and Hernandez argued about $250 Hernandez owed him. Carbajal took off his shirt and challenged Hernandez and Joey to a fight. Because he needed to calm down, Carbajal eventually left to buy a beer.

As he walked back towards his house with his friend, Mike Lara, Carbajal passed Hernandez’s house. Hernandez and Joey were still on the porch. They yelled at him to come over. Intending to apologize, Carbajal approached them. Fighting instead resumed. Hernandez went inside the house. Joey, however, tried to push Carbajal against a fence, but Carbajal pushed him to the ground. After he pushed Joey away, Carbajal saw defendant for the first time that night. Defendant told Carbajal to “ ‘come here.’ ” Carbajal felt like defendant hit him. He then noticed he was bleeding. He had been stabbed in the neck, breast area and stomach, but he didn’t feel it.

Carbajal went across the street to a friend, who took him to the hospital. Because he was scared, Carbajal initially told the police he got into a bar fight. After leaving the bar, someone approached him from behind, demanded money and stabbed him.

Carbajal did not have a weapon on him that night. He did not see Hernandez with a weapon.

B. The defense case.

Defendant testified. Defendant lives around the corner from Hernandez. On the night in question, he was passing Hernandez’s house around 10:00 p.m. He saw Hernandez, Joey, Mike Lara and Carbajal. Carbajal was being belligerent. He took off his shirt and wanted to fight. Some pushing occurred. When Carbajal wouldn’t leave, Joey and Hernandez carried him off the property. Carbajal, however, came back with Lara. He was cussing and being loud. He pushed Joey to the ground. He was asked to leave again, but Joey and Hernandez had to carry him across the street.

Carbajal returned. Defendant told him to leave, but Carbajal assumed an aggressive stance and pulled out a knife. Defendant blocked the knife, and he pulled out his own knife and cut Carbajal’s neck and stomach. Defendant grabbed the blade of Carbajal’s knife and twisted it out of his hand.

Defendant did not go to the police. He told Officer Carlos Arroyo that Carbajal had a knife. Officer Arroyo, however, testified on rebuttal that defendant did not tell him Carbajal had a knife. A detective who interviewed defendant also testified that although defendant said Carbajal attacked him, defendant never said he saw Carbajal had a knife.

II. Procedural background.

Trial was by jury. On December 19, 2007, the jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true a great bodily injury allegation (§ 12022.7, subd. (a)).

All further undesignated statutory references are to the Penal Code.

On January 10, 2008, the trial court sentenced defendant to the high term of four years for the assault. The court also sentenced him to an additional three-year term for the great bodily injury enhancement (§ 12022.7, subd. (a)), plus four years for four prior convictions (§ 667.5.)

DISCUSSION

I. The trial court’s failure to instruct the jury with CALCRIM No. 301 was not prejudicial.

Defendant contends that the trial court’s failure to instruct the jury with CALCRIM No. 301 was prejudicial error. We disagree.

Edited, CALCRIM No. 301 provides: “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.” CALCRIM No. 301 should be given sua sponte in every criminal case in which no corroborating evidence is required. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.) The failure to give an instruction is reviewed under the standard in People v. Watson (1956) 46 Cal.2d 818. (People v. Carpenter (1997) 15 Cal.4th 312, 393, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.)

Defendant argues he was prejudiced by the trial court’s failure to give CALCRIM No. 301 to the jury because he provided the sole evidence that the victim, Carbajal, pulled a knife on him. Had the jury been instructed with CALCRIM No. 301, defendant continues, then the jury would have known that his testimony alone was sufficient to establish his defense of self-defense.

Even in the absence of CALCRIM No. 301, we do not think it is reasonably probable either that this point was lost on the jury or that an outcome more favorable to defendant would have been reached had the instruction been given. Although CALCRIM No. 301 first states that the testimony of one witness is sufficient to prove any fact, it next cautions the jury to “carefully review all the evidence” before concluding that a fact has been proven based on one witness’s testimony. Therefore, even if the jury considered defendant’s testimony sufficient by itself to establish that Carbajal used a knife to attack defendant, the jury still had to review all of the evidence.

That evidence, as the prosecutor and defense counsel argued, boiled down to who the jury believed: defendant or Carbajal. Defendant testified that Carbajal had a knife, which he used to try and stab defendant. Defendant, in using his own knife to stab Carbajal, was reacting in self-defense. Carbajal, however, said he did not have a weapon. Officer Arroyo and Detective Wolfe corroborated Carbajal’s story by denying that defendant ever said Carbajal had a knife. Detective Wolfe also looked for a knife, which defendant said he threw into a gutter, but he did not find it.

Moreover, the gist of CALCRIM No. 301—that the jury must consider all the evidence before relying on the testimony of a single witness—is in other instructions which were given to the jury. For example, the jury was instructed with CALCRIM No. 220 (in deciding whether the People proved their case beyond a reasonable doubt the jury “must impartially compare and consider all the evidence that was received throughout the entire trial”); CALCRIM No. 223 (“Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge.... You must decide whether a fact in issue has been proved based on all the evidence”); and CALCRIM No. 226 (the jury must judge the witnesses’ credibility, considering factors such as, “How reasonable is the testimony when you consider all the other evidence in the case?”).

Considering the instructions as a whole, as we must (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112), with the evidence, any error the trial court committed by failing to instruct the jury with CALCRIM No. 301 was harmless.

II. Sentencing.

Defendant next contends that the trial court wrongly concluded at his sentencing hearing it lacked discretion to strike the great bodily injury enhancement (§ 12022.7, subd. (a)). We disagree.

Under section 1385, subdivision (c), a court has discretion to dismiss or to strike an enhancement, or to “ ‘strike the additional punishment for that enhancement in the furtherance of justice.’ ” (People v. Meloney (2003) 30 Cal.4th 1145, 1155.) “Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.] [¶] Remand for resentencing is not required, however, if the record demonstrates the trial court was aware of its sentencing discretion. [Citations.] Further, remand is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record. [Citation.] ‘ “[A] trial court is presumed to have been aware of and followed the applicable law.” [Citations.]’ [Citation.]” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.)

Nothing in the record suggests that the trial court here misunderstood its sentencing discretion. At the sentencing hearing, the court said it would impose three years for the great bodily injury enhancement under section 12022.7, subdivision (a). The following exchange then occurred:

“[Defense counsel]:... The jury was out for at least a couple of hours with a question regarding the G.B.I. The witness received 11 stitches or 10 stitches. There was not, I believe, any surgery or any major organs inflicted. [¶] Ask if the court would consider striking the G.B.I. Also as to the items that the court indicated, at least the last four prison priors all deal with theft of property.

“The court: That’s correct.

“[Defense counsel]: So my point is in terms of the violence this is – other than the one mentioned about an attempted robbery, there’s been no increase in terms of violence. [¶] On behalf of [defendant] in terms of convictions I’ve seen all petty theft and commercial burglaries.

“The court: But the problem [is] he hasn’t stayed out of trouble since 2000. He’s averaged every other year for seven years.” Defense counsel continued to argue why the high term should not be imposed, but the trial court rejected the argument. Defendant then addressed the court:

“The defendant: Your honor, it was assault with a deadly weapon. It wasn’t actually an assault. The assault was basically upon myself. Mr. Carbajal was the one that attacked me first with a big knife, which he wanted to cut my head of[f]. Put my life in danger.

“The court: I understand that’s your position but the jury disagreed with you.

“The defendant: But that’s what happened, whether they agree with me or not is irrelevant. That’s what happened.

“The court: Unfortunately what the jury decides is the most relevant.

“The defendant: What happened is he tried to take my life and I reacted the only way I possibly knew how, not by murdering him. That’s not my trip. I was trying to defend myself. [¶] As far as great bodily injury, he wasn’t injured at all. He was able to run to the guy who took him to the hospital. They waited hours before they went to the hospital, and then he took him to the farthest hospital they could find, rather than Whittier Presbyterian, they went to Fullerton. That makes no sense. They got there and lied about what happened. [¶]... [¶] I just had the nerve to stand up for myself better when he attacked me, which isn’t against the law to defend yourself when somebody is trying to murder you.

“The court: You are correct that self-defense is an appropriate defense, but it’s for the jury to decide whether that existed or not. I don’t see anything in this case that would lead me to believe this was an unfair or inappropriate verdict.” (Italics added.)

At no time during this exchange or the sentencing hearing did the trial court state or suggest it lacked discretion to strike the enhancement. (Compare with People v. Jones (2007) 157 Cal.App.4th 1373, 1378 [trial court said it lacked discretion to stay or to strike an enhancement].) To the contrary, defense counsel asked the court to strike the great bodily injury enhancement. The court indicated that it was not appropriate either to strike that enhancement or not to impose sentence on the prior convictions because of defendant’s record. Then, when defendant argued he acted in self-defense, the court explained that nothing in the case led it to believe the verdict was unfair or inappropriate. The record therefore shows that defendant and defense counsel made a full argument as to why the sentence was inappropriate. The court listened and responded to that argument. Implicit in the record is the court’s knowledge it did have the discretion to strike or not to strike the enhancement. The court chose to exercise its discretion by imposing sentence on the enhancement.

DISPOSITION

The judgment is affirmed.

We concur: CROSKEY, Acting P. J. KITCHING, J.


Summaries of

People v. Ballesteros

California Court of Appeals, Second District, Third Division
Apr 22, 2009
No. B205323 (Cal. Ct. App. Apr. 22, 2009)
Case details for

People v. Ballesteros

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES BALLESTEROS, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Apr 22, 2009

Citations

No. B205323 (Cal. Ct. App. Apr. 22, 2009)