Opinion
B225358
10-17-2011
THE PEOPLE, Plaintiff and Respondent, v. VICTOR MANUEL GUZMAN, Defendant and Appellant.
Lindy C. Hayes, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA361348)
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. Affirmed.
Lindy C. Hayes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Victor Manuel Guzman appeals from the judgment entered following his conviction by jury of inflicting corporal injury to his spouse, with the finding that he personally inflicted great bodily injury. (Pen. Code, §§ 273.5, subd. (a), 12022.7, subd. (e).) He was sentenced to seven years in prison. Defendant's sole contention is that the trial court improperly allowed the prosecutor to impeach him with a misdemeanor conviction for spousal battery. We conclude defendant forfeited one of his theories by failing to lodge the proper objection and that any alleged error was harmless. Accordingly, we affirm the judgment.
The jury found defendant not guilty of making terrorist threats. (Pen. Code, § 422.)
STATEMENT OF FACTS
I. The Prosecution Case
On August 27, 2009, Juana G. and defendant, her husband, were at a birthday party at her brother's home. Defendant consumed around nine or 10 alcoholic drinks. Juana drank two beers. At about 11:00 that evening, the two returned home and went to bed.
Juana and defendant attempted to engage in sexual intercourse, but defendant was physically unable to perform. They began to argue, as defendant said he was jealous of a young man who had been at the party. Defendant suggested that Juana look for the young man and have sex with him because defendant was unable to do so.
After making this statement, defendant got on top of Juana, struck her in the left eye, and then repeatedly hit her about the face with a closed fist. He placed his hands around Juana's throat and began strangling her. She was unable to breathe and lost consciousness. When Juana opened her eyes, she was lying on the floor and defendant was hitting and kicking her all over her body, using both fists and both feet. He kicked her more than 10 times. Juana struggled to get to the kitchen, where she grabbed the telephone, but defendant took it from her. She got on all fours and crawled toward the front door of the apartment. She got to the door and reached for the knob. Defendant grabbed her by the neck, pushed her head against the wall several times, and started to strangle her. She blacked out once more.
When she woke up, defendant began to hit her about the body. She crawled to the bathroom while defendant continued to hit and kick her. Eventually, she was able to get inside the bathroom and lock the door. Defendant banged on the bathroom door and screamed at her.
Juana looked in the mirror and saw her face was covered in blood. Her cell phone was in the bathroom, so she called her daughter. While Juana was on the phone, defendant told her that if she did not leave the bathroom she would have to ask for God's help, which is a death threat in her culture. When her daughter did not answer, Juana called 911 and told the operator she was locked in the bathroom. Defendant continued yelling and threatening to kill her. Juana remained in the bathroom.
At approximately 11:35 p.m. on August 27, Los Angeles Police Department Officer Michael Briones and his partner responded to the apartment. Officer Briones knocked on the door and received no response. He announced their presence in English and Spanish, at which time Juana opened the front door. When the officer saw her injuries, he called for an ambulance. Officer Briones and his partner searched the apartment for a suspect, but no one else was inside.
In speaking to Juana, the officers learned that defendant had beaten her and that he drove a red pick-up truck. Officer Briones walked out to the balcony (the apartment was on the second floor) and observed a red pick-up truck in the parking lot. After the paramedics arrived and began treating Juana, the officers walked to the parking lot. They observed defendant inside of the truck and arrested him. After arranging for defendant's transport to the station, the officers went to the hospital to which Juana had been taken. After locating her in a room where she was being treated, Officer Briones took photographs of Juana.
Detective Shon Wells interviewed Juana at the apartment the day after she was initially released from the hospital. She gave him details of the attack and he took pictures of her injuries. After Juana returned to the hospital, Wells again spoke to her and took additional pictures.
Juana remained in the hospital until the following evening; however, she returned the next day because she could not stand or use the bathroom on her own. She stayed an additional two days. Following her final release from the hospital, Juana continued to have trouble breathing. She saw her doctor, who indicated she was not breathing normally. As a result, Juana underwent surgery.
Dr. Khaled A. Tawansy is a board certified ophthalmologist. He stated that petechiae are a clinical sign that the eye has suffered trauma. Generally, petechiae are the result of the application of significant force that causes the pressure in the blood vessels to increase. At some point, the vessels begin to seep blood. Dr. Tawansy examined Juana's medical records that were compiled during her emergency room visit to Los Angeles County USC Medical Center in August 2009 and a series of photographs taken of her at that time. He noted that Juana had several hemorrhages around her eye and surrounding skin indicative of strangulation or chest compression. He opined that some of her injuries were the result of asphyxiation. His overall impression was that "she was a victim of trauma and that there was some evidence of direct trauma to the face, as well as evidence of strangulation. She suffered some significant injuries. . . . The petechiae most likely were caused by forceful strangulation."
Juana identified the photographs that Dr. Tawansy viewed as being among those taken when she arrived at the hospital. She identified additional photographs taken by Detective Wells in the days following the attack. All of the photographs were shown to the jury.
II. The Defense Case
Defendant went to a party on the night of August 27, 2009. Juana was at the location when he arrived. While there, he had three or four drinks. Juana was drinking, but since she was there before he arrived, he did not know how much she had to drink. Defendant thought she was intoxicated. Defendant told Juana that he wanted to leave the party because he had to work the next day; however, she wanted to stay and continue drinking. Nonetheless, Juana told her family that she and defendant were leaving and they walked to their apartment.
Once inside, the couple went to bed. Juana wanted to have sex. After several minutes, defendant was unable to get an erection and Juana became upset. She began yelling at defendant that he could not perform because he had been with someone else. They had had many arguments in the past concerning defendant's inability to get an erection. While Juana continued to yell at him, defendant decided to leave the bedroom. She asked where he was going.
Defendant could not see very well because the lights in the apartment were off. He was walking toward the living room when he heard a loud noise behind him. He turned and saw that Juana had fallen near the kitchen sink, knocking over a chair. He said Juana was drunk at the time and that she often lost her balance when she was in that condition. He went to where she was lying on the floor. Juana grabbed his arm, defendant tried to break free, and she fell again. He believed that she fell in the area of the trash can. Near the can were pieces of a vase that had been broken earlier. Juana started scratching him and he was able to turn on a light. He saw that she was bleeding. Since he "didn't know how to help," defendant went to the bedroom to put on clothes and prepared to leave the apartment. He noticed that Juana was in the bathroom and he told her that if the police came he would be waiting downstairs for them.
Defendant went outside and got into his truck. He sat there for about 15 or 20 minutes before being contacted by police officers.
Defendant denied striking Juana in the face or any other part of her body. He stated he did not kick or choke her.
He was asked about the words Juana said he spoke to her while she was in the bathroom. He said they did not constitute a threat of any kind. He had never heard the words interpreted in the manner expressed by Juana. Defendant was shown the photographs depicting Juana's injuries and said he did not see her in that condition on the night of their argument.
DISCUSSION
During trial, defense counsel informed the court that defendant would be testifying and that the prosecutor wanted to impeach him with a 1996 misdemeanor conviction for spousal battery. (Pen. Code, § 243, subd. (e)(1).) Defense counsel asked the court "to exclude [the conviction] because it is 15 years old." The court ruled the prosecution could impeach defendant with the prior conviction.
The court also determined that it would not allow the prosecution to use the prior conduct as propensity evidence pursuant to Evidence Code section 1109 because it failed to give the defense the requisite statutory notice.
The parties revisited the issue after the court expressed misgivings about allowing the jury to hear that defendant's prior conviction involved a charge of domestic violence and stated it was inclined to sanitize the conviction. When asked for his views, defense counsel reiterated that the prior was old and asked that it be excluded. In the alternative, he requested that the conviction be sanitized and that the jury be advised the prior conviction was a misdemeanor. The court determined that the prior would be referred to as a crime of moral turpitude and declined to inform the jury that defendant had been convicted of a misdemeanor.
Defendant contends the court erred by allowing the prior conviction to be used for impeachment on three grounds: (1) it was remote; (2) the court failed to inform the jury that the prior conviction was a misdemeanor; and (3) the court failed to instruct the jury that the prior could be used only for impeachment purposes.
Following briefing, we asked the parties to address the applicability of People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler), the seminal case on the admissibility of misdemeanor convictions for impeachment purposes. In a supplemental brief, defendant argued, "the admission of [defendant's] misdemeanor conviction violated the principles in Wheeler because a misdemeanor conviction is inadmissible hearsay." The Attorney General urged that because trial counsel objected on the grounds that the conviction was remote and could not be used as propensity evidence, defendant's belated hearsay claim is forfeited. We agree with the Attorney General.
As in Wheeler, "defendant waived any hearsay claim by making no trial objection on that specific ground. [Citations.] Accordingly, admission of [his] misdemeanor conviction to impeach [his] credibility cannot serve as grounds for reversal of the judgment against defendant." (Wheeler, supra, 4 Cal.4th at p. 300, see also People v. Cadogan (2009) 173 Cal.App.4th 1502, 1515 [the defendant objected to the admission of the prior convictions "on grounds of remoteness and the fact that the crimes were misdemeanors," and failure to raise a hearsay objection forfeited that claim].)
We address defendant's other bases underlying his contention that the prior should have been excluded and conclude that, assuming error, he cannot show he suffered prejudice as a result. Prejudice results from the improper use of a conviction for impeachment if it is reasonably probable that defendant would have received a more favorable outcome absent the error. (People v. Gurule (2002) 28 Cal.4th 557, 609 [error analyzed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836].) Given the overwhelming evidence of defendant's guilt, he cannot establish prejudice.
The nature of Juana's injuries demonstrated that she had been subjected to a savage beating. In addition to the wounds observed by the officers that led them to summon an ambulance, Dr. Tawansy concluded that Juana suffered significant injuries causing visible trauma to her face. He also opined that some of her injuries were the result of asphyxiation and that the petechiae he observed "most likely were caused by forceful strangulation." Juana spent three days in the hospital. Her injuries resulted in her being unable to stand on her own for several days following the beating and required later surgery to enable her to breathe properly. In response, defendant, who admittedly was the only person in the room with Juana at the time she sustained her injuries, claimed that she merely fell. He denied striking her and insisted he did not see her in the condition depicted by the photographs that were presented to the jury.
Defendant suggests that because the jury acquitted him of making terrorist threats, it is likely the admission of the prior conviction caused it to convict him of spousal abuse. We disagree. If the prior conviction were as prejudicial as defendant contends, the jury would have convicted him of both counts. The reason defendant was convicted of physically abusing Juana is simple. His incredible depiction of the events in question was undermined by the physical evidence and the expert's opinion. Error, if any, was not prejudicial.
Defendant also contends the court erred when it failed to inform the jury that his prior conviction was a misdemeanor. Assuming error, for the reasons expressed above, it was harmless.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.