Opinion
F075417
03-12-2020
THE PEOPLE, Plaintiff and Respondent, v. RAUL LOPEZ-BECERRA, Defendant and Appellant.
Charles M. Bonneau III, 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, and Carlos A. Martinez, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF164791A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. J. Eric Bradshaw, Judge. Charles M. Bonneau III, 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, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
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Defendant Raul Lopez-Becerra was convicted by a jury of willful infliction of corporal injury on a spouse, child endangerment, and violating a restraining order. He raises two issues on appeal. First, he contends his child endangerment conviction was not supported by substantial evidence. Second, he contends the trial court erred by permitting the prosecutor to argue in closing argument that Lopez-Becerra was using his Spanish interpreter as a ploy to "buy time" to answer questions during cross-examination. We affirm.
STATEMENT OF THE CASE
The Kern County District Attorney filed an amended information charging Lopez-Becerra with the following: willful infliction of corporal injury resulting in a traumatic condition on a spouse (§ 273.5, subd. (a); count 1), child endangerment (§ 273a, subd. (b); count 2), and violating a court order (§ 273.6, subd. (a); count 3.) It was further alleged as to count 1 that Lopez-Becerra inflicted great bodily injury (§ 12022.7, subd. (e)), that he was previously convicted within the last seven years of an offense under section 273.5, subd. (f)(1), that he was previously convicted of a prior strike offense within the meaning of the Three Strikes Law (§§ 667, subd. (c)-(j) & 1170.12, subd. (a)-(e)), and that he was previously convicted of a serious felony (§ 667, subd. (a)). The section 12022.7, subd. (e) and section 667, subdivision (a) allegations were later dismissed under section 995.
Unlabeled statutory references are to the Penal Code.
The court granted Lopez-Becerra's motion to bifurcate the trial on the prior convictions and he waived his right to trial on the priors. A jury convicted Lopez-Becerra on all three substantive counts and the trial court then found the prior conviction allegations true.
The court sentenced Lopez-Becerra to a total of eight years in state prison as follows: eight years on count 1; 180 days on count 2 to run concurrently with the term on count 1; and one year on count 3, stayed under section 654.
FACTS
A. Prosecution's Case
On July 10, 2016, Martha, who was Lopez-Becerra's ex-wife, and B., who was his 15-year-old daughter, drove to a Bakersfield grocery store. Both Martha and B. testified at trial. Lopez-Becerra arrived shortly after and parked seven to 10 parking spaces away while Martha and B. were still in Martha's car. Martha had an active restraining order against Lopez-Becerra that prevented him from coming within 100 yards of her or contacting her, and Martha was surprised to see Lopez-Becerra there in the parking lot. B. explained that she had texted Lopez-Becerra she was going to be there and that he was there to give her money for school clothes.
To protect their privacy, we use only the adult victim's first name and the minor victim's first initial.
Martha and LopezBecerra were married for 15 years.
B. got out of Martha's car and went over to speak with Lopez-Becerra outside of his car. Martha stayed in her car. Lopez-Becerra asked B. how she was doing, and B. said she was "fine" but responded to Lopez-Becerra with attitude. Lopez-Becerra began yelling at B. but B. did not yell back. Martha saw Lopez-Becerra become angry, which prompted her to get out of her car and walk over to them. Martha asked Lopez-Becerra what was happening and Lopez-Becerra said it was "none of [her] business." Martha told B. they were leaving and told her to go back to Martha's car. B. obeyed and walked back over and got into Martha's car.
Martha and Lopez-Becerra argued as they walked back toward Martha's car and Lopez-Becerra accused Martha of cheating on him with his brother. They continued to argue briefly behind Martha's car until Martha got back into her car and closed the door. Lopez-Becerra walked around to B.'s side of the car and opened the passenger door. He reached across B. and grabbed ahold of Martha's blouse with one hand and pulled her over B., and then punched Martha in the face with his other hand. The punch caused a cut over Martha's left eye that began to bleed. Blood dripped off Martha's face and onto B.'s leg. B. testified that Lopez-Becerra punched Martha while they were "on [her]," and testified to being "scared" when her father punched her mother. However, B. was not physically struck. Martha noticed a police car nearby and began honking her horn to get the officer's attention. Lopez-Becerra got into his car and began driving away.
A man, G.T., witnessed the assault. He testified he had a "clear view" of the attack. He heard "some scuffling" going on in a vehicle, and he saw a man [later identified as Lopez-Becerra] "lean over" while the man was seated in the passenger seat. G.T. heard the woman scream but he could not see what was happening. G.T. watched Lopez-Becerra step out and then a female step out, and G.T. noticed she was bleeding from her nose area and her mouth area. G.T. did not see anyone else in the car besides the man and woman. G.T. called 911 and got into his car and followed Lopez-Becerra until officers pulled Lopez-Becerra over. During the 911 call, which was played for the jury, G.T. said Lopez-Becerra "hit her pretty hard" and "assaulted her pretty good."
Lopez-Becerra was pulled over by Officer Brady Barber and transported back to the scene where Officer Steven Pace was standing with Martha. Photographs were taken of Martha and the cut above her eye, as well as of B. and the blood on her leg. Martha declined medical aid at the scene and instead drove herself to the hospital, where her cut was sealed with surgical glue.
Prior Acts of Domestic Violence
There was extensive testimony presented regarding prior acts of domestic violence by Lopez-Becerra against Martha. Martha testified regarding three such prior acts as part of the prosecution's case-in-chief. The acts occurred in April 2011, September 2014, and May 2015. After the September 2011 incident, Lopez-Becerra pleaded guilty to assault with a deadly weapon. A certified record of this conviction was introduced at trial. The couple's two children were present for the beginning of that assault and saw Lopez-Becerra slap Martha, push her off a chair, and begin hitting her on the ground. B. also testified that she had seen her father hit and punch her mother in the face within the last six years, and testified she felt scared during such incidents.
The evidence of the prior acts of domestic violence is not germane to the issues raised on appeal, so our discussion is limited.
B. Defense's Case
Lopez-Becerra took the stand in his own defense and was assisted by a Spanish language interpreter. He testified that the day before July 10, 2016, he asked B. to have Martha take her to the grocery store. He arrived at the grocery store about five minutes after Martha and B., and B. got into his car and they began driving to a department store. Martha called B. and told her not to take too long, but Martha said it with a "bad attitude." He drove B. back to the grocery store's parking lot and began arguing with Martha and told her her bad attitude was unnecessary.
Lopez-Becerra and Martha had an argument, but he never went inside of Martha's car. They stood outside of Martha's car on opposite sides while B. stayed in his car. When Martha told B. they were leaving, B. left his car and sat in Martha's car. He accused Martha of being with his brother, and Martha said she indeed had been with his brother. Martha started yelling and honking her car horn, so he left in his car. He did not see any injuries on Martha while he was at the grocery store. B. was never next to Martha during their argument, and B. was in the backseat of Martha's car when he left the parking lot.
Lopez-Becerra was later pulled over by a police officer and brought back to the scene where Officer Pace read him his Miranda rights. Lopez-Becerra did not tell Officer Pace he had taken B. to a department store or that she had been in his car. Instead, he said he was taking her to the grocery store. He knew he was subject to a restraining order that prohibited him from having contact with Martha, and he told officers he left the scene to avoid getting into trouble for violating the restraining order.
Miranda v. Arizona (1966) 384 U.S. 436.
With respect to the prior acts of domestic violence, Lopez-Becerra acknowledged he pleaded guilty to assault with a deadly weapon after the April 2011 incident. However, he said Martha attacked him first and that he only grabbed her in an attempt to control her.
On cross-examination, Lopez-Becerra admitted two incidents from 2002 and one from 2014 that each resulted in a conviction for misdemeanor domestic violence or misdemeanor battery on a spouse. With respect to a July 2002 incident, he testified he and Martha pushed each other but he could not remember who started it. He could not recall any other incident from 2002 but admitted he had been drinking at the time. He could recall only verbal arguments with Martha in 2015.
C. Prosecution's Rebuttal
B. testified that, during the July 10, 2016, incident, she never got into Lopez-Becerra's car and sat only in the passenger seat, not the backseat, of Martha's car. Martha also never saw B. get into Lopez-Becerra's car and never called her to come back to the grocery store.
Officer Pace read Lopez-Becerra his Miranda rights after Officer Barber returned him to the scene. When Officer Pace asked him what happened, Lopez-Becerra said, "[T]hey arrived ... to go grocery shopping," and "[h]e became engaged in a verbal argument with [Martha] and then fled the area because he didn't want to get in trouble." Lopez-Becerra denied hitting Martha, and when Officer Pace asked him how she got a cut over her eye, Lopez-Becerra asked, "She has a cut over her eye?" Officer Pace asked him why he hit Martha, but Lopez-Becerra denied he did.
The entire conversation between Officer Pace and Lopez-Becerra was in English, and Officer Pace had no trouble understanding Lopez-Becerra and Officer Pace did not believe, based on Lopez-Becerra's responses, that he had any trouble understanding the questions. Similarly, Martha testified that, while she and Lopez-Becerra spoke with each other mostly in Spanish, Lopez-Becerra, to her knowledge, understood and spoke English.
DISCUSSION
A. Child Endangerment Conviction
Lopez-Becerra contends there was insufficient evidence he violated section 273a, subdivision (b)—misdemeanor child endangerment. Specifically, he claims there was insufficient evidence he inflicted unjustifiable mental suffering on B. We disagree.
The standard of review is well settled. "When considering a challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] ... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 273a, subdivision (b), provides: "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or [2] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [3] willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor." The parties acknowledge Lopez-Becerra was tried and convicted under section 273a, subdivision (b) on the theory he willfully caused or permitted B. to suffer unjustifiable mental suffering.
"Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct. [Citations.] When the harm to a child is directly inflicted, the requisite mental state for the section 273a offense is general criminal intent. [Citations.] When that harm is indirectly inflicted, the requisite mental state is criminal negligence. [Citations.] Criminal negligence is aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. [Citation.] A defendant may be deemed to be criminally negligent if a reasonable person in his position would have been aware of the risk." (People v. Burton (2006) 143 Cal.App.4th 447, 454 (Burton).)
Here, there was no suggestion Lopez-Becerra intended to directly inflict any suffering on B. Even though the attack happened literally over B.'s body, the record does not suggest, nor do the People contend, Lopez-Becerra intended to strike B. or cause her mental suffering. Instead, his conviction rests on whether he indirectly inflicted mental suffering on B; "more specifically, whether the evidence is sufficient that [he] willfully caused or permitted [B.] to suffer, or inflicted unjustifiable mental suffering on [her], and whether [he] did so with a mental state of criminal negligence toward [her]." (Burton, supra, 143 Cal.App.4th at pp. 454-455.) The pattern jury instruction for violation of section 273a, subdivision (b) provides: "Someone commits an act willfully when he or she does it willingly or on purpose." (CALCRIM No. 823.)
The definition of "unjustifiable mental suffering" is easily ascertained. "Suffering" is defined by Lexico's dictionary as: "The state of undergoing pain, distress, or hardship." In section 273a, the term "mental suffering" is modified only by the word "unjustifiable." CALCRIM No. 823 provides: "Unjustifiable physical pain or mental suffering is pain or suffering that is not reasonably necessary or is excessive under the circumstances." Contrary to Lopez-Becerra's suggestion, the minor's mental suffering need not be "substantial" or "serious." Any amount of mental suffering will suffice, provided it is "unjustifiable."
https://www.lexico.com/definition/suffering (as of Mar. 11, 2020). --------
The record contains substantial evidence Lopez-Becerra's attack on B. caused or inflicted on B. unjustifiable mental suffering. B. testified to being "scared" when her father punched her mother. That she was "scared" means she experienced some degree of distress, which is sufficient to constitute mental suffering. There was also substantial evidence her mental suffering was "unjustifiable" because it was "not reasonably necessary" under the circumstances. Lopez-Becerra's attack on Martha was not only willful, but totally unprovoked and unnecessary, and it was likewise unnecessary for Lopez-Becerra to commit the attack literally on top of B. and for B. to experience the fear that she did.
There is also substantial evidence Lopez-Becerra acted with criminal negligence toward B. when he attacked Martha. His attack on Martha was unquestionably a willful act, and what is worse is that it occurred while essentially on top of B., their minor daughter. Under the criminal negligence standard, Lopez-Becerra's conduct toward B. was such a departure from that of an ordinarily prudent or careful person as to be incompatible with a proper regard for human life. A reasonable person would easily recognize that a child would endure unjustifiable mental suffering by being in such close proximity as her father punches her mother so hard in the face it draws blood.
We conclude Lopez-Becerra's conviction under section 273a, subdivision (b) was supported by substantial evidence.
B. Prosecutor's Comments
Lopez-Becerra next claims the trial court erred by overruling his objection to the prosecutor's closing argument, which stated that Lopez-Becerra, by using an interpreter at trial, was "buy[ing] time" to answer questions on cross-examination. He argues the overruling of the objection effectively allowed him to be impeached based on his invocation of his right to an interpreter in violation of his due process rights. We conclude the prosecutor's comments were not improper when reviewed in context, and Lopez-Becerra's due process rights were therefore not violated.
1. Background
Lopez-Becerra testified in his own defense with the assistance of a Spanish language interpreter. He stated at least twice during cross-examination he did not understand a question, and at another point during cross-examination answered a question before the interpreter translated it. The prosecutor told him he was answering before the interpreter translated and asked him if he spoke English, and he said he spoke English "a little."
During closing argument, the following colloquy ensued:
"[PROSECUTOR]: Language barrier. 'I don't understand the question.' Clearly he's had an interpreter with him the whole time. I want you to remember he had a full on conversation with Officer Pace in English. Didn't have any problems understanding Officer Pace, responded properly to all of Officer Pace's questions. So as he's telling you that he doesn't understand my questions, I submit to you, ladies and gentlemen, that's buying him more time to think of a proper answer to say. [Martha] stated he understood English and you even heard him answering my questions before the interpreter—
"[DEFENSE COUNSEL]: I'm going to object at this point, your Honor, as to commentary on the use of interpreter.
"[THE COURT]: Ladies and gentlemen, I'm going to overrule that objection. Your view of the credibility of the witness can be based on anything that reasonably tends to prove or disprove the truth or accuracy of testimony. But the mere fact that somebody uses a courtroom interpreter may not be considered by you to—as evidence of guilt or even evidence in the case. I'll just leave it at that right now. Overruled.
"[PROSECUTOR]: Thank you, your Honor. So my point is, is that as I'm asking the questions, he's able to respond to them before the
interpreter even has an opportunity to tell him the questions. Ladies and gentlemen, this front of 'I don't understand,' 'I don't know' or of giving me back another question rather than answering the one I posed is all just a way to get out of telling the truth."
2. Analysis
A prosecutor is given wide latitude during argument, and if the defendant decides to take the stand, his or her credibility may be impeached and his or her testimony assailed like that of any other witness. (People v. Peoples (2016) 62 Cal.4th 718, 796; Portuondo v. Agard (2000) 529 U.S. 61, 61-62.) Here, the prosecutor's comments, when read in context, were designed to attack Lopez-Becerra's credibility. The prosecutor was essentially arguing Lopez-Becerra was a liar, i.e., he was aided by an interpreter, yet he was able to converse with his arresting officer in English, was able to appropriately answer at least one of the prosecutor's questions without the interpreter's help, and answered, "I don't understand," when pressed with certain questions by the prosecutor. Moreover, Martha testified that she believed Lopez-Becerra understood English.
The context and circumstances of the prosecutor's statements do not show the prosecutor was casting aspersions on Lopez-Becerra's credibility merely because he used an interpreter. Rather, the prosecutor was suggesting that the jury should consider the particular way Lopez-Becerra used the interpreter—and consider the witness testimony of his English capabilities—when judging his credibility as a witness. This was not improper, and the trial court acted properly by overruling the objection and immediately instructing the jury as it did.
Further, even if the trial court did error by overruling Lopez-Becerra's objection, the error was harmless under either of the respective standards articulated in Chapman v. California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818 because the evidence of Lopez-Becerra's guilt was overwhelming. Martha and B. testified consistently regarding the attack, and photographs showed the cut and blood on Martha's face and the blood on B.'s leg. An independent witness also saw the attack and followed Lopez-Becerra until the police apprehended him. We are confident beyond a reasonable doubt the jury's verdict would not have been any different had the trial court sustained defense counsel's objection to the prosecutor's comments regarding Lopez-Becerra's use of the interpreter.
DISPOSITION
The judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.