Opinion
B230960
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. ALBERT HEREDIA, Defendant and Appellant.
Joseph Robert Escobosa, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PA066451)
APPEAL from a judgment of the Superior Court of Los Angeles County, Beverly Reid O'Connell, Judge.
Joseph Robert Escobosa, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Albert Heredia appeals from the judgment entered following a jury trial which resulted in his conviction of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). The trial court suspended imposition of sentence and granted Heredia three years probation on the condition, among others, that he serve 365 days in county jail. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
He was given credit for 26 days.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On December 19 and 20, 2009, Angel Trejo lived at 21056 Chatsworth Street, at the corner of Variel Avenue. On the evening of the 19th, Trejo hosted a party at his home. Approximately 40 people attended and the festivities began at about 9:00 p.m. Everyone was inside the house and those people who were drinking alcoholic beverages had brought their own. Trejo was not drinking any alcohol that evening.
At approximately midnight, Trejo heard people start to yell. Someone said, " 'Oh, there is a fight outside, somebody is getting hurt[.]' " Party guests started to go out to the front yard to see what was happening. They congregated on the Variel Avenue side of the yard.
When Trejo went outside, the first things he saw were "a couple [of] people holding back a guy with a knife and . . . a lot of people running . . . . [T]here [were] a couple [of] [individuals] in the front area on the corner of Chatsworth and Variel just . . . observing" and "this guy on the ground, . . . on Variel[,] . . . bleeding." When Trejo saw the man lying in the middle of the street, he called 911.
The man lying in the street was "holding himself—he had his hand on his chest." Trejo did not know if the man was unconscious or not, but when he saw blood on the sidewalk and the street, he called the police.
In addition to people running, Trejo saw a couple of people get into a red jeep and "dr[i]ve away fast." The car pulled up on Variel Avenue, a couple of individuals got in and the jeep then made a quick left turn onto Chatsworth Street and drove off.
Trejo knew the man holding the knife. His name is Javier Franco and, in high school, he and Trejo had played on the same football team. Two people were restraining him, or "holding him back." They were standing near a car parked on the driveway leading to Variel Avenue and Franco, who was holding a small knife, something like a pocket knife, was "pulling against the people who were holding him."
Trejo also knew appellant, Albert Heredia. They had been in the same high school class. Trejo remembered seeing Heredia at the party that night, but he did not remember seeing him outside of the house. Once Trejo went outside, he did not see Heredia again.
Because she and Trejo were friends, Diane Mekdara attended the party at his home on December 19, 2009. Mekdara arrived at the house at approximately 11:00 p.m. While at the party, Mekdara had "[m]aybe two glasses" of an alcoholic beverage.
Mekdara estimated that there were between 35 and 45 people at the gathering, approximately 10 of which she knew. One of the people which Mekdara knew was Ezequiel Morales. Morales was a friend of one of Mekdara's friends.
Toward midnight, Mekdara noticed that between two and five "people inside the [house were] being louder than normal." They were being "a little loud and aggressive towards each other." It "sounded like they were in each other's faces." A few minutes later, there was some commotion outside of the house. People were going out to the front yard and, out of curiosity, Mekdara followed. While she was still inside the house, but just a few feet from the doorway, Mekdara realized that there was a fight going on. She first saw "four or five people just punching and kicking each other." Mekdara walked out of the house, into the front yard and continued to watch the fight. When she first went outside, all the participants were standing. However, after approximately 25 or 30 seconds, Mekdara saw that Morales had fallen to the ground. Even after Morales had fallen, Heredia continued to kick and hit him "multiple times in both the chest and head area." After Heredia had punched and kicked Morales for between 15 and 30 seconds, Mekdara "tried to stop the fight among everybody." She pushed people away from each other and, although some individuals stopped attacking each other, Heredia did not stop kicking and punching Morales.
At the preliminary hearing, Mekdara testified that there had been six to eight people fighting.
At the preliminary hearing, Mekdara testified that, when she first came out of the house, Morales was on the ground and that she never saw him standing and fighting.
Mekdara noted that Heredia had stopped hitting Morales when she saw Morales "[s]tumbling" down the driveway toward Variel Avenue. Mekdara approached Morales and saw that he was "bleeding from his head area." He appeared dazed and fell to the ground when he reached the street. Mekdara, using a T-shirt someone had given to her, applied pressure to the wound on Morales's head. He had a "gash . . . about an inch [long] just" at the back of his head and a stab wound to his chest.
While she was "rendering first aid to [Morales] on Variel Avenue," Mekdara saw Heredia "on the street shouting and yelling." Heredia yelled out a number of times, " 'Fuck San Fer.' "
At approximately 12:10 a.m. on December 20, 2009, Los Angeles Police Officer Benjamin Mia responded to a call directing him to 21056 Chatsworth Street. The call indicated that there had been an assault with a deadly weapon committed by an individual who matched Heredia's description. Although the call directed Mia to Trejo's house, Mia first saw Heredia as he and another individual were walking southbound on Variel Avenue towards San Jose Street, approximately one-half block from Trejo's home. Mia first identified Heredia by the black "Los Angeles Kings' Hockey Baseball hat" he was wearing.
Mia detained Heredia and his companion, then broadcast to other officers in the area that he had found a potential suspect. Keeping them where he had detained them, Mia conducted a field showup of Heredia and the man Heredia had been walking with. Mekdara, one of the individuals brought to view Heredia, identified him as the man who had beaten Morales.
Mekdara stated that she was "somewhat confused about some of the events [from that evening] or exactly how the events went down." She was, however, not "confused at all about who [she] saw kicking and punching [Morales] on the ground." "[D]uring the incident [she] was able to see [Heredia] clearly punching and kicking [Morales]." She could see Heredia's face and clothes and was able to estimate his size. Heredia is a large individual.
At approximately 12:10 a.m. on December 20, 2009, Los Angeles Police Officer Luke Landsberger and his partner, Officer Rizzo, received a call directing them to 21056 Chatsworth Street. When the officers first arrived at the house, they saw "[a] crowd of people in the middle of [the southeast corner of] the street." Landsberger moved the crowd back, out of the street, then saw Morales "laying on the ground." Landsberger kept the people away and called for an ambulance. He noted that Morales had a cut on his head and had been stabbed in the torso.
The ambulance arrived approximately two minutes later and Landsberger and his partner accompanied Morales to Northridge Hospital. The officers waited with Morales "in case [he made] any statements." They also wished to be there in case he passed away.
Los Angeles Police Officer Jaime Brien also responded to a call directing him to 21056 Chatsworth Street. He and his partner arrived at the address at a little after midnight on December 20, 2009 and saw a large crowd in the middle of the street in front of the house. Brien noticed "clothes . . . in the street with blood and remnants from the Fire Department['s] tape and gauze and . . . trash." Brien and his partner began separating witnesses. Brien focused on Diane Mekdara "because she was a very strong witness."
Brien and his partner transported Mekdara to the location where Heredia was being detained with his companion Patterson. There, she identified Heredia as the individual who had beaten Morales. After Mekdara identified him, Heredia was placed under arrest, taken to the Devonshire Police Station, and booked. Some of the items booked into evidence were a Los Angeles Kings baseball hat and shoes with blood stains on them.
A witness indicated that Patterson had possessed a knife. However it was later determined that Patterson had arrived at the party after the stabbing.
It was stipulated that swabs taken from each shoe showed the profile of an unknown person. Neither sample was found to be the blood of Morales.
Brien had received information that Franco had a knife that evening and that he was the primary suspect in the stabbing. Heredia had told the officer that Franco had arrived in a green Pathfinder. Brien had also been told that Franco had arrived at the party in a red Jeep Cherokee. Officers initiated a search for Franco, looking for both a green Pathfinder and a red Cherokee. Officers subsequently found Franco and placed him under arrest.
At approximately 12:10 a.m. on December 20, 2009, Los Angeles Police Officer Samuel Hong responded to a call directing him to 21056 Chatsworth Street. Upon arriving at the scene, Hong "went and assisted with the officers who had a possible suspect in custody[.]" Hong and the other officers "secured the scene" and "checked the area for the weapon that [had been] involved."
Later that morning, at approximately 4:15 a.m., Hong interviewed Heredia at the Devonshire Station. After Hong advised Heredia of his Miranda rights, Heredia told Hong that he and some of his friends had gone to a party at the corner of Chatsworth and Variel in a red jeep Cherokee. Another friend of Heredia's, a man named Javier Franco, was also at the party. He had come separately in a green Pathfinder. While Heredia and Franco were talking, Franco showed to Heredia a black knife and told Heredia "that if he needed to use it that night . . . he would."
Miranda v. Arizona (1966) 384 U.S. 436.
At the preliminary hearing, Hong testified that Heredia had told him that he had arrived at the party with John Franco.
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Heredia told Hong that he, Franco and his other friends were known as "brawlers," or a "group of people that just go around looking for fights." That night at Trejo's, one of Heredia's friends "named Miguel got into a dispute with somebody else and it turned into a fight." Heredia told Hong that he had been "heavily intoxicated and [that] basically the only thing he recall[ed] was getting mixed . . . into the fight" that evening.
Heredia indicated that during the altercation, someone yelled out " 'San Fer.' " Heredia's family has ties to Latin Times, which is a rival gang. So, Heredia's response to the individual who yelled out " 'San Fer' " was to yell out " 'Fuck San Fer.' "
At some point during the brawl, Franco and a group of his friends jumped into a red Jeep Cherokee and left the area, leaving Heredia behind. Heredia was not happy about that.
At the end of Hong's interrogation, Heredia wrote out a statement regarding the events of December 19 and 20, 2009. In that statement, Heredia did not write anything about "Javier or John Franco wanting or liking to fight or starting fights . . . ." He also wrote that he did not know how the blood had gotten onto his shoes. In his statement, Heredia wrote that, during the melee, someone had yelled out that somebody had gotten stabbed. Heredia, however "didn't say [that] he saw who [had] stabbed who . . . ."
After the fight, all of Heredia's friends left the area. He was upset that they had gone without him.
2. Procedural history.
Following a preliminary hearing, on May 14, 2010 an information was filed alleging in count 1 that on or about December 20, 2009, Albert Heredia did willfully and unlawfully commit upon Ezequiel Morales assault with a deadly weapon, to wit, shod feet, in violation of section 245, subdivision (a)(1), a felony. In count 2 it was alleged that on or about December 20, 2009, Albert Heredia committed the crime of assault by means likely to produce great bodily injury upon Ezequiel Morales in violation of section 245, subdivision (a)(1), a felony. In the third count, it was alleged that, on or about December 20, 2009, Albert Heredia committed assault with a deadly weapon, a knife, upon Ezequiel Morales in violation of section 245, subdivision (a)(1), a serious felony within the meaning of section 1192.7, subdivision (c).
On May 18, 2010, Heredia pleaded not guilty to all three counts. He requested a jury trial, which was begun on January 31, 2011.
After the prosecution presented its case, defense counsel moved for entry of a judgment of acquittal pursuant to section 1118.1. With regard to count 3, the assault with a knife, defense counsel argued: "So the initial issue here as far as I am concerned is whether the People can prove that the perpetrator of the crime—a specific person, I would argue—committed the crime beyond a reasonable doubt. [¶] And then secondly, what evidence has been presented to suggest that [Heredia] before or during the commission of the actual stabbing intended to aid and abet that particular person? [¶] . . . [¶] The only information that we have is that . . . this man was unfortunately stabbed at some point during this event; and sometime earlier, perhaps hours earlier, [Heredia] was apparently made aware of the fact that a person who may or may not have been the one who actually committed the crime had a knife. [¶] But there is no evidence so far that [Heredia] aided in that behavior at all."
The trial court then addressed the prosecutor and stated: "[E]xplain to me . . . how the proof that was elicited at trial goes to the aiding and abetting, because we can all agree, can we not, that the only theory of liability for count 3 is an aiding and abetting theory?" The prosecutor responded: "In light of not having Mr. Morales testify, I was, one, either going to submit on the 1118[.1] feeling that it would be granted, or ask that it be dismissed or not taken to the jury. [¶] . . . [¶] . . . I don't want to go forward on count 3 at this point based on the evidence that has come in." The trial court then dismissed count 3.
After hearing argument regarding counts 1 and 2, the trial court determined there was sufficient evidence to submit them to the jury.
After the jurors were instructed and heard argument by the parties, they retired to the jury room. A short time later, the defendant and counsel returned to the courtroom and the trial court announced that it had received "three buzzes[,]" or three "verdicts." When the jurors and two alternates entered the courtroom, the trial court asked the foreperson if the jury had reached verdicts. The foreperson indicated that they had and handed the verdict forms to the bailiff who, in turn, handed them to the court clerk.
The clerk read the verdicts in relevant part as follows: "We, the jury in the above-entitled action, find the defendant, Albert Heredia, not guilty of the crime of assault with a deadly weapon in violation of . . . section 245(a)(1), a felony, as charged in count 1 of the information. [¶] This 3rd day of February, 2011[.]" "We, the jury in the above-entitled action, find the defendant, Albert Heredia, guilty of the crime of assault by means likely to produce great bodily injury in violation of . . . section 245(a)(1), a felony, as charged in count 2 of the information. [¶] This 3rd day of February, 2011[.]"
The jury was discharged and counsel for Heredia argued that he had attended all of his court dates and, with the exception of some minor juvenile issues, had no other contact with the law. He had good family support and "this was an aberration in his behavior[.]" Accordingly, he should be allowed to remain on bail pending sentencing. The trial court disagreed. The court stated: "The crime is a crime of violence. It is not a serious or violent felony. The Penal Code requires me to remand [Heredia] unless I make exceptional circumstances findings, and I am not prepared to find that[,] given the nature of the offense[,] that he is not a danger." A date for sentencing was set and Heredia was remanded.
Heredia was sentenced on February 10, 2011. The trial court indicated that, although it had not received any sentencing memoranda, it had received nine letters on behalf of Heredia. In addition, counsel argued: "He has no criminal record. [¶] So I think that all adds to the perspective that this was really uncharacteristic of his behavior and may have had to do with, . . . drinking and being with a group of people that perhaps he should not have been hanging out with. [¶] For that reason, . . . [and] considering again the issue of the . . . injuries here and the confusion as to what exactly happened to cause the injuries, we would be requesting that the court consider reducing this to a misdemeanor. [¶] And if not that, that the court certainly allow him a chance on probation and then a reasonable sentence beyond that."
The prosecutor argued that the "violent nature of this case and of the offense of which [Heredia] was convicted is somewhat serious in nature" and the most appropriate sentence would be the low term on count 2.
The trial court indicated that it was troubled by the fact that Heredia had yelled out, " 'Fuck San Fer.' " The court continued, "That changes the characteristic of the attack a little bit, and that gives me great concern." Defense counsel stated that "there has never been an ounce—an iota of evidence that [Heredia] is involved in a gang. [¶] . . . [¶] . . . [T]hat to me means that it doesn't make this a gang situation. It makes it a situation where people were yelling stupid things." The trial court responded, "I think there is more than that. I think it increases the aggression level. I think . . . it raises the specter of gang involvement[.]"
When Heredia was given the opportunity to personally address the court, he stated: "Well, that statement that I made is just—it was—I was just drunk. I was drunk and I regret making it, because I know there was nobody . . . [at the] party [tied] to San Fernando. It was just a stupid comment I made because I was drunk . . . ." "I regret making that statement . . . because I am not a gang member."
After some additional discussion, the trial court granted Heredia three years felony probation, one condition of which was that he serve 365 days in Los Angeles County Jail. He was awarded presentence custody credit for 13 days actually served and 13 days of good time/work time. The trial court addressed Heredia and stated: "I will consider reducing [this conviction] to a misdemeanor if you successfully complete your probation. [¶] So you have three years to prove to me that you can abide by the laws of our state and . . . better yourself. [¶] I am going to give you a chance, Sir."
Heredia was ordered to pay a $40 court security fee (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 probation revocation restitution fine (§ 1202.44) and a $10 DNA fine.
Heredia filed a timely notice of appeal on February 10, 2011.
This court appointed counsel to represent Heredia on appeal on April 15, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed June 27, 2011, the clerk of this court advised Heredia to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
ALDRICH, J.