Opinion
F074446
10-31-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE BENITO HINOJOSA, Defendant and Appellant.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. LF010860A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and DeSantos, J.
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INTRODUCTION
Appellant Jose Benito Hinojosa stands convicted of assault with a deadly weapon, a knife, in violation of Penal Code section 245, subdivision (a)(1). He contends his conviction should be reversed because the trial court erred in instructing the jury with CALCRIM No. 371, consciousness of guilt: suppression and fabrication of evidence, and CALCRIM No. 372, defendant's flight. We affirm.
References to code sections are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
An information filed February 24, 2016, charged Hinojosa with assault with a deadly weapon, in violation of section 245, subdivision (a)(1). It also was alleged that Hinojosa caused great bodily injury within the meaning of section 12022.7.
Testimony at trial established that on September 20, 2015, Claudina Alaniz Marquez and her husband, Rudy Alaniz, were at home on their farm in rural Kern County with their children when Marquez heard a crash. It was about 8:30 in the evening and the sound seemed to have come from the road at the back of their house. Alaniz and Marquez went to "check and see if everything is okay" and told the children to stay inside and lock the doors.
Portions of the original reporter's transcript is rendered in all capital letters. All quotations from that transcript in this opinion are modified to reflect conventional capitalization.
The couple got into their car and drove toward Edison Road; Alaniz was driving, and Marquez was in the front passenger seat. As they drove down Edison Road, they approached the shared dirt road that divided their property from that of their neighbor, Felipe Hinojosa. As they passed the dirt road, they saw a shadow of a person on the dirt road.
We refer to Felipe Hinojosa by his first name to avoid confusion with appellant. --------
They continued driving down Edison Road until they came to the end of the orchard, then made a U-turn to come back the same direction. As they approached the dirt road, a "person came out from the orchard with his hands up." The man was standing at the edge of the dirt road and Edison Road. As Alaniz and Marquez continued to approach slowly, the man began "walking fairly fast towards the car." Marquez saw a knife in the man's hand and told her husband to "step on it."
The man came onto Edison Road and got "really close" to the car containing Alaniz and Marquez. The driver's side window was "halfway open." As they drove past the man, the man was "able to throw the knife in his hand into [the] car." The knife was thrown through the partially open window and "flew across" Alaniz's face. Marquez ducked, but "knew it had struck me ... I knew something hit me." Marquez noticed the man was wearing dark colored shorts, a white or gray T-shirt, and his clothes were dirty.
Alaniz and Marquez did not drive directly home; they did not want to lead their attacker to their home where the children were waiting. Marquez pulled out her cell phone to call 911, but was "kind of panicking." Her shoulder and back felt "wet." Alaniz took the cell phone and finished the 911 call. Marquez was screaming at her husband, "there is blood." He told her, "don't look."
Marquez and Alaniz kept driving up and down the road by their house until California Highway Patrol officers arrived. Shortly after, Kern County Sheriff's deputies arrived. Deputies found the knife in the car. Alaniz described the man with the knife to Sheriff's Deputy Bess Rutter. Alaniz had seen Hinojosa in the past and thought the man with the knife was Hinojosa, although he appeared "rough" and "dirty." Alaniz told deputies Hinojosa lived on the adjoining farm.
Sheriff's Sergeant Stephen Pederson responded to the scene that night. Pederson was provided information that a possible suspect was at the adjacent farm. Pederson drove to the adjacent farm on a road that ended in an orchard; he then had to walk through the orchard to the house. As he walked toward the house, Pederson could see a light that was intermittently on and off, as though someone was walking in front of it and blocking it.
Outside the house, Pederson saw "a large amount of expended ammunition and a lot of beer bottles." He knocked on the front door and Felipe answered. Pederson asked to speak with Felipe's brother, Hinojosa, and Felipe responded that Hinojosa was upstairs. After a pause, Felipe said Hinojosa was sleeping. Felipe allowed Pederson to enter the house. Felipe then spoke with his wife, who led Pederson upstairs to where Hinojosa was located.
While he was downstairs, and as he walked up the stairs, Pederson did not hear any sounds coming from the second floor. As he was about to enter the bedroom, however, Hinojosa "let out a loud snore that he hadn't been doing" before. Hinojosa was laying horizontally on the bed; the lower half of his body was not on the bed and it appeared as if he was "holding himself up with his legs." Hinojosa was "totally naked and sweating, profusely." Pederson thought the profuse sweating was indicative of recent, "laborious activity."
Pederson shined a flashlight toward Hinojosa's face and Hinojosa opened his eyes and sat up. Hinojosa did not appear groggy or exhibit any indication of someone who had just been awakened. Pederson looked around the room and did not see any clothing. Pederson saw a pair of short pants in the hallway near the bathroom and gave them to Hinojosa "to put on."
Pederson asked Hinojosa "what had happened tonight." Hinojosa responded that he "had some friends over and then he went to sleep." Pederson asked Hinojosa some "direct questions," and Hinojosa responded he "had not been involved in a fight, had not been involved in any kind of a chase."
Pederson walked Hinojosa out of the house and turned him over to other deputies. At that time, Alaniz made a field identification of Hinojosa. Rutter placed Hinojosa under arrest. Rutter described Hinojosa as appearing intoxicated; his eyes were watery and blood shot and there was an odor of alcohol on his breath.
Sheriff's Deputy Sean Dunshe took custody of Hinojosa and placed him in the back of his patrol vehicle. Hinojosa was "very animated" and had a "strong odor of alcohol just emanating from him in general." Hinojosa was "displaying several injuries" that Dunshe wanted to document, so Dunshe got out his department issued digital camera and attempted to take pictures. Hinojosa was uncooperative; he would not stand still; would not follow directions or commands from Dunshe; and was laughing and chuckling. Hinojosa was "profusely sweating and ... covered in dirt." Dunshe observed "several fresh scratches on his back," "[t]wo abrasions on his legs and numerous bruises all over."
Marquez and Alaniz did not have any weapons with them when they went out to investigate the crash sound on September 20, 2015. They purchased two pistols a few days after the incident. Alaniz owned a shotgun at the time of the incident but did not have it with him in the car that evening.
Felipe testified that about two days after the incident, he spoke with Alaniz. Felipe claimed Alaniz stated Hinojosa was "lucky [Alaniz] didn't shoot him."
Hinojosa testified on his own behalf. He lived with his brother, Felipe, and took care of the watering and trimming of the trees and feeding the cattle and horses. On the evening of the incident, Hinojosa testified he had gone outside after dinner to feed the animals. As he finished feeding the animals and was preparing to go back into the house, he heard a water line leaking. He went into the kitchen to "grab the knife and coupling" to repair the water line. Hinojosa had to kneel in the mud to fix the water line.
As Hinojosa stood up after fixing the water line, he saw a car that was approaching and he "got scared." Hinojosa walked "two or three steps" towards the car. He saw the car window was lowered and saw a man "lifting something with his right hand." Hinojosa "got scared" and "went backwards." At this point, the "knife left [Hinojosa's] hand, and the only thing I did was run." The knife "slipped" from his hand.
Hinojosa ran home. He ran through the trees and "ended up where the tangled cables were." His shorts were dirty because he had knelt in the mud. He received scratches when he tripped on the tangled cables. Once inside the house, he made sure all the doors and windows were locked. At some point, he removed his clothes and got into bed. He testified he did not call the police because nobody had a cell phone.
Hinojosa drank six to eight beers during the afternoon but had not been drinking in the evening. He did not cooperate with the deputy taking pictures because "they were talking about uploading them to Google." He did not tell the deputy "about being involved with the car," because his immigration attorney told him "never speak to an attorney, to an officer."
The jury convicted Hinojosa of assault with a deadly weapon but found not true the great bodily injury enhancement. At the September 27, 2016 sentencing hearing, the trial court imposed the lower term of two years for the offense.
Hinojosa filed a notice of appeal on September 29, 2016.
DISCUSSION
Hinojosa contends the trial court erred in instructing the jury with CALCRIM Nos. 371 and 372. He argues substantial evidence did not support these instructions.
I. Standard of Review
A decision by a trial court whether to give an instruction is a mixed question of law and fact that is " 'predominantly legal,' " and is subject to de novo review. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
Instructional error is subject to review under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 836.)
II. No Instructional Error
As given to the jury, CALCRIM No. 371 stated:
"If the defendant tried to hide evidence that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Evidence Code section 413 allows the trier of fact to consider the willful suppression of evidence.
CALCRIM No. 372, as given to the jury, stated:
"If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
After an unreported conference on instructions, the trial court asked defense counsel if there were any proposed instructions to which the defense objected. !(RT 390)! The defense objected to CALCRIM Nos. 371 and 372. As to CALCRIM No. 371, the defense argued there was no evidence "the defendant tried to hide any evidence at all."
The prosecution asked that the jury be instructed with CALCRIM No. 371, arguing that Hinojosa hid or got rid of the T-shirt he had been wearing and was uncooperative during attempts to take photographs of his injuries. Based upon this evidence, the prosecution argued the instruction was appropriate. The trial court overruled the defense objection, stating:
"The Court has deemed there's enough evidence to explain to the jury how to deal with that scenario presented to them along with the evidence presented in the case."
The trial court then asked defense counsel to state the grounds for an objection to CALCRIM No. 372. Defense counsel argued:
"You can't expect somebody who is in fear of his safety to stay in that position, in that spot. So he didn't flee the crime. He went into safety. 372
is confusing at best and there's no evidence that he fled the crime. He was in the same location in the house, locked the doors, checked the windows, locked them. That's not flight from a crime in that context, and I think it would be confusing [to] the jury and there would be misconceptions in as far as his—whether he fled a crime or not."The prosecution responded:
"If one assumes the interpretation of the evidence in a court how [defense counsel] had stated it, he may have a point; however, that's for the jury to decide. The Prosecution's argument is going to be exactly the opposite. The defendant threw a knife, fled the scene, remained in his home until contacted by the police. Thus a completely alternate interpretation of the evidence would, I think, necessitate this instruction so the jury could properly evaluate that flight."In ruling that "372 is needed," the trial court stated:
"Both arguments are there. Both interpretations are there. The Court feels that 372 is there to help the jury and aid them. If they believe the defendant fled, then they deal with the evidence and the merits elected by 372. If they don't, they don't. So it provides direction to the jury in how to deal with this situation."
Analysis
A consciousness of guilt instruction should be given when there is "some evidence in the record that, if believed by the jury, would sufficiently support the suggested inference." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.)
Here, the incident with Hinojosa and the knife occurred where a dirt road intersected into Edison Road. Marquez testified the man with the knife was wearing dark shorts and a white or gray T-shirt and his clothes were dirty.
Hinojosa did not remain at the scene; Pederson arrived at the home where Hinojosa resided to find Hinojosa naked, sweating profusely, and sprawled across his bed. Pederson heard no sounds as he went up the stairs of the home, but as he reached the open doorway of the bedroom, Hinojosa let out a loud snore. The deputy shined his flashlight across Hinojosa's face and Hinojosa adjusted his position on the bed. Pederson testified Hinojosa did not appear groggy or exhibit indications of someone who had just awoken.
Pederson looked around the bedroom and did not see any clothing. Pederson picked up some short pants that were in the hallway, close to the bathroom, and handed them to Hinojosa. Hinojosa told Pederson that he had friends over that evening, then went to sleep. Hinojosa claimed he had not been involved in any fight, or "any kind of a chase."
After Hinojosa was identified in a field line-up, attempts were made to photograph and document the injuries on Hinojosa. Hinojosa repeatedly turned away when attempts were made to photograph the injuries, laughing as he did so. Hinojosa had fresh scratches on his back and two abrasions on his legs. He had numerous bruises on his body.
Based on the trial evidence, a reasonable inference exists that Hinojosa took steps to hide evidence and flee from the scene. This inference is logically and reasonably drawn from the facts in evidence. The clothing Hinojosa was wearing when he wielded the knife and the abrasions and bruises Hinojosa suffered as he fled from the scene are all evidence that a jury could infer Hinojosa attempted to hide from authorities to avoid the consequences of his behavior, which supports instructing the jury with CALCRIM No. 371. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 102.) We also note the trial court could have, but did not, instruct the jury with the version of CALCRIM No. 371 that discusses fabrication of evidence to address Hinojosa's false statements to Pederson regarding his activities the evening of the incident.
That Hinojosa fled from the scene is undisputed. The reason he fled was in dispute, with Hinojosa claiming he fled to safety. It was not merely the fact that Hinojosa left the scene that warranted the instruction; it was his conduct afterwards in lying to Pederson about his whereabouts that evening that evidenced a consciousness of guilt from the flight. When Pederson found Hinojosa at his residence, Hinojosa lied to Pederson, telling Pederson he had not left the residence or been at the scene. This evidence constitutes substantial evidence warranting instructing the jury with CALCRIM No. 372. (People v. Bonilla (2007) 41 Cal.4th 313, 326.)
The record reflects the trial court properly instructed the jury with CALCRIM Nos. 371 and 372. Accordingly, there was no instructional error. (People v. Cole, supra, 33 Cal.4th at p. 1217.)
III. Any Error Was Harmless
Errors in jury instructions are typically reviewed under the Watson standard. (People v. Breverman (1998) 19 Cal.4th 142, 178.) Under the Watson standard, reversal for instructional error must be based on a reasonable probability, and not just a theoretical possibility, that it affected the trial's outcome. (People v. Blakeley (2000) 23 Cal.4th 82, 94.)
Here, even if the trial court erred, any presumed error was harmless. Alaniz and Marquez both testified the knife was deliberately thrown into the vehicle through the open window. The knife flew past Alaniz's face and hit Marquez. A knife was found in the backseat of the vehicle that had not been there before the incident. Alaniz positively identified Hinojosa as the man with the knife. Hinojosa admitted having the knife in his hand, but claimed it slipped. Hinojosa claimed he was scared he would get shot; but Alaniz and Marquez testified they had no firearm with them. After the incident, Alaniz and Marquez drove away from the scene, then called the authorities. Hinojosa also left the scene, but he did not report the incident even after returning home and lied to deputies about his whereabouts that evening. Based upon this evidence, it is not reasonably probable the jury would have returned a verdict more favorable to Hinojosa. (People v. Blakeley, supra, 23 Cal.4th at p. 94.)
Furthermore, the instructions pursuant to CALCRIM Nos. 371 and 372 could be viewed as benefitting Hinojosa. These instructions made it clear to the jury that any effort Hinojosa may have taken to suppress evidence, or flee the scene, was not, by itself, sufficient to establish his guilt. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235 [addressing CALJIC No. 2.06, predecessor to CALCRIM No. 371].)
DISPOSITION
The judgment is affirmed.