Opinion
G036040
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO ESQUIVEL, Defendant and Appellant.
Katharine Eileen Greenebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Marco Antonio Esquivel was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), but the jury found not true the allegation that he had inflicted great bodily injury (Pen. Code, § 12202.7, subd. (a)). He claims there was insufficient evidence he committed the crime and that the judgment should be reversed because the court erred in not instructing on the lesser included offense of simple assault. We disagree and affirm.
FACTS
One night defendant went to an alley where perhaps as many as 15 to 20 people were congregating and socializing. Some, including defendant, were drinking; defendant had eight or nine beers but said he was not drunk, merely "buzzed." Included in this group were Lorenzo Moran, Maria Arroyo, Sylvia Vasquez, Elizabeth Bravo, and a man known as Cherry. Arroyo testified that defendant asked Moran "where are you from" or words to that effect in an aggressive voice. Arroyo said defendant and Cherry, each holding a beer bottle in his hand, started running towards Moran. Arroyo then saw defendant hit the back of Morans head with the bottle, breaking it. Moran was hospitalized, suffering from a head wound requiring about 12 stitches.
After he was arrested, defendant was interviewed by detective Barry Coffman. The interview was taped and transcribed; the tape was played during trial and the transcript was provided to the jury. During the interview, defendant initially denied hitting Moran with a bottle, although he did admit he "punch[ed] him." He stated he did not have a bottle in his hand, or did not remember having a bottle in his hand, but later agreed "Maybe, maybe, maybe I had the bottle . . . ." When Coffman told him two others in the alley said he had had a bottle in his hand, defendant stated, "um oh my god. Well. Well. Like um. I did." Coffman confirmed, "Ok. You did?" and defendant replied, "Yeah." Shortly thereafter defendant stated that if he had been "in [Morans] shoes" facing someone holding a bottle, "I would . . . back off."
Coffman asked defendant how he had held the bottle when he hit Moran. Defendant replied, "Well if Im holding a bottle Im holding it like . . . . [¶] . . . [¶] . . . I was holding it like this . . . ." He continued, "it had to be with the fat end . . . ." Coffman told defendant not to speculate but to explain what actually happened, and asked him again how he held the bottle. Defendant demonstrated and confirmed when Coffman said, "Ok so you held it by the neck of it." When Coffman asked, "And what did you do?" defendant said, "Well I . . . went like boop you know? I hit him."
When testifying at trial defendant several times denied hitting Moran with a bottle or at all. He stated Coffman had pressured him during the interview, "wouldnt leave me alone[, and] didnt want to understand what I was telling him." He was not comfortable speaking to Coffman in English "because I couldnt express myself very well." He testified that although he "was telling the detective how everything had happened," "after he had put so many things in my head, I had nothing else to tell him other than that it was me so he could let me go." As for his demonstration of how he had held the bottle, defendant said, "I only showed him how I could have used it."
DISCUSSION
1. Sufficiency of the Evidence
Defendant contends there is insufficient evidence that he hit Moran with the bottle, relying on three factors. First, the victim did not know what he was hit with or who hit him on the back of his head. He identified two men, but not defendant, who assaulted him. Second, defendant claims the testimony of three eyewitnesses could not be reconciled, either among them or internally as to two. Third, defendants testimony and statement to the police "strongly suggest" he was not the one who caused the deep gash on Morans head. We are not persuaded.
Where there is a claim of insufficient evidence, "we do not determine the facts ourselves. Rather, we `examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) "Unless it is clearly shown that `on no hypothesis whatever is there sufficient substantial evidence to support the verdict the conviction will not be reversed. [Citation.]" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.)
Here the evidence is sufficient to support the judgment. The fact that Moran could not state whether he had been hit with a beer bottle or by whom is irrelevant. An eyewitness testified she saw defendant hit Moran on the back of his head with a beer bottle. The testimony of one witness is sufficient. (People v. Zavala (2005) 130 Cal.App.4th 758, 766).
In addition, defendant admitted during the police interview he hit Moran with a beer bottle. He argues his statements in the interview were equivocal or hypothetical, that he had only stated, "if I [had] a bottle," and that several times he had said he did not remember. Whether "a reasonable person would question whether he meant he had actually done the things the detective was trying to get him to admit . . .," or whether he was pressured into admitting the crime, is for the jury, not us, to determine.
Likewise, sorting out the contradictory testimony of witnesses is the jurys task. Arroyo testified that she saw defendant hit Moran on the head with a beer bottle. This is what she told the police as well. Defendants attempt to impeach her testimony was unsuccessful, notwithstanding his arguments to the contrary.
Defendant relies on Arroyos testimony that "[w]hen [defendant and Cherry] approached him, they both have beer bottles, but when they left, nobody had beer bottles in their hands anymore." He argues this "suggests Arroyo no longer wanted to state unequivocally that she actually saw [defendant] hit Moran with the bottle."
But in context this is not what Arroyo was saying. Rather, she was amplifying her answer that she had not seen Cherry hit Moran. That Arroyo was "kind of far away" when Moran was hit only goes to credibility, which we do not consider. (People v. Quintero, supra, 135 Cal.App.4th at p. 1162 ["we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact"].) A review of Arroyos entire testimony shows she was clear that defendant hit Moran with the bottle.
The sufficiency of the evidence is not undermined by testimony of Leticia Romero, defendants investigator, who testified Arroyo told her she saw Cherry hit Moran. Arroyos trial testimony that she saw defendant hit Moran with the bottle is sufficient, "even if it is contradicted by other evidence, inconsistent or false as to other portions." (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.)
Neither does the contradictory trial testimony of eyewitness Vasquez, and as compared with her testimony at the preliminary hearing and her statements to the police and Romero, help defendant. At trial Vasquez testified she saw defendant and Cherry running toward Moran each with a bottle in his hands. She never saw either hit Moran; she heard glass breaking, saw Moran bleeding, and then defendant and Cherry had no bottles in their hands. She testified that based on what she did see, she concluded either defendant or Cherry hit Moran. Vasquez also stated she told the police defendant hit Moran with the bottle. At the preliminary hearing she testified defendant and Cherry ran toward Moran holding bottles and she saw Cherry but not defendant hit Moran. The jury was free to believe or disregard this testimony as it saw fit.
Similarly, testimony by a third eyewitness, Bravo, that both defendant and Cherry held beer bottles but that she saw Cherry hit Moran is only contradictory evidence, which the jury chose not to believe. The fact that witnesses disagree with each other does not make the evidence supporting the verdict insufficient. (In re Frederick G., supra, 95 Cal.App.3d at p. 366.)
"`To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear. [Citations.] It also is true that uncertainties or discrepancies in witnesses testimony raise only evidentiary issues that are for the jury to resolve. [Citation.]" (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Here, Arroyos testimony and defendants admission in the police interview neither shock the conscience nor are the clearly inherently improbable. That evidence was sufficient to support the conviction.
2. Instructing on Lesser Included Offense
Defendant contends the court erred by failing to instruct the jury on assault as a lesser included offense of assault with a deadly weapon. The Attorney General conceded that it was error not to give the instruction. Thus, we must determine whether the absence of instruction on assault warrants reversal.
The prejudice, if any, of failure to instruct on a lesser included offense is reviewed under People v. Watson (1956) 46 Cal.2d 818. "A conviction of the charged offense may be reversed in consequence of this form of error only if, `after an examination of the entire cause, including the evidence [citation], it appears `reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 178.)
A review of the record shows it was not reasonably probable there would have been a more favorable outcome had a simple assault instruction been given. Defendant relies on testimony by Arroyo and Vasquez that he hit Moran with his fists or his hands as opposed to a bottle as the basis for the instruction. But this is not sufficient to warrant reversal.
Arroyo testified she saw defendant and Cherry, each with a beer bottle in his hand, and then saw defendant hit Moran with a bottle. The next thing, she "saw them beating him up and then thats when [others] just ran to get in the way. Thats when everybody started beating up [Juan and Moran] . . . ." "[E]verybody started running towards [Juan and Moran] and they started beating them up . . . ." Arroyo tried to pull Cherry off Moran. She did not remember where defendant was at that time "because there [were] a lot of people . . . there. . . . When they first hit [Moran], he was one of the ones, but after that, I dont know where everybody was . . . ." Although this is some evidence of simple assault by defendant, the same witness testified to the assault with a deadly weapon.
Vasquez testified she saw defendant and Cherry running toward Moran, each with a bottle in his hand. Then, "everybody just [ran] after them. They started running. They started arguing and hitting and after there were more guys[,] . . . 15, 20 of them. It was . . . a big fight." She "ran to try to take the guys away from them [presumably Moran and Juan]. Even though [Moran] was bleeding, they were still kicking him and hitting them [sic] on their [sic] head. They were also chasing [Morans] friend and they were also hitting him and kicking him and we were just trying to break them apart . . . ." She also testified defendant was one of about 20 guys "hitting" Moran. A third witness, Bravo, testified that she saw Cherry, not defendant, hit Moran with the bottle.
Although in the taped police interview, defendant stated he had punched Moran, he repudiated that at trial and at least three times testified he never struck him. Additionally, defendant admitted to the police he hit Moran with a bottle, even demonstrating how he had done it, although at trial he disputed that, claiming he felt pressured and that he was answering only hypothetically.
Viewing the record in total, it is not reasonably probable defendant would have obtained a more favorable verdict had the assault instruction been given. Defendants own admissions that he hit Moran with the bottle had to be given considerable weight, despite his attempts to withdraw or explain them at trial. This was buttressed by Arroyos testimony confirming defendants admission. That there was other evidence that was equivocal or uncertain was not unusual or particularly persuasive, given that the incident occurred during a brawl involving 20 other people. In addition, the evidence defendant hit Moran with his fists did not have to be regarded as mutually exclusive of evidence he hit him with a bottle. The evidence reasonably supports a conclusion defendant committed both acts.
DISPOSITION
The judgment is affirmed.
We Concur:
ARONSON, J.
FYBEL, J.