Opinion
B292275
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS VELASCO, JR., Defendant and Appellant.
Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steven D. Matthews and Rama R. Maline, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA113012) APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed. Juliana Drous, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Jose Luis Velasco, Jr. guilty of attempted voluntary manslaughter, assault with a deadly weapon, violation of a court order involving domestic violence with a previous conviction, stalking, and mayhem. Velasco argues that the trial court violated his rights to confront witnesses and to mount a defense when it improperly limited his cross-examination of the victim and excluded a witness. Further, he asserts that the mayhem conviction is not supported by substantial evidence and that the prosecutor committed misconduct during closing argument. We disagree and affirm.
BACKGROUND
Velasco and Jennifer Yui were in a relationship for five years. During that time, they had two children together. Velasco abused Yui, so she ended the relationship. However, Velasco continued to harass Yui and threatened to kill her. She obtained multiple restraining orders and a criminal protective order against Velasco.
Yui got engaged to Robert Garcia and they had one child together. Garcia did not know Velasco prior to moving in with Yui.
Velasco repeatedly called Garcia and said that he wanted to get his kids back and that, if he did not, he would "come after" them. Velasco called Garcia every two or three days and also sent him text messages. In one call, Velasco told Garcia, "you took my kids away and now I'm going to take away yours." Velasco would call Garcia in the middle of the night and threaten to shoot him or beat him up. He also showed up at Garcia's work and aggressively asked a coworker about Garcia. On one occasion, Garcia found his office windows broken. Garcia and Yui reported to the police each time Velasco violated the restraining orders so the police advised them to relocate for their own safety.
Garcia filed a civil restraining order against Velasco. Unperturbed, Velasco told Garcia he would continue to harass and threaten Garcia's family. He also called Garcia's ex-wife and the Department of Children and Family Services to report that Garcia was abusing the children, resulting in numerous investigations.
Velasco posted two YouTube videos about Garcia. In the first YouTube video, Velasco admitted harassing Garcia because he was angry about not seeing his children. Velasco accused Garcia of beating "the shit out of [Velasco's] daughter and she's screaming and all [Velasco] can do is just listen." Velasco said, so, "[y]ou better believe I wanted to kill his ass." He urged people not to do business with Garcia and said that Garcia's license was restricted because he beat up a woman.
In the second YouTube video, Velasco again accused Garcia of beating up Velasco's daughter. In the video Velasco said, "I'll fuck[ing] kill [Garcia] if [he] fuck[ing] hit my kids, and he did. I call the cops and if [the cops] don't fuck[ing] do anything, I'm going to fuck[ing] kill him myself." Velasco also accused Garcia of beating up his own child. Velasco said, "You don't wake up my kids and beat them because you are angry with their father. He wants me to go over there crazy . . . because he is taunting me."
On the day of the attack in this case, Garcia saw Velasco drive past his home. Yui said they should leave, but as Garcia was loading his car, Velasco pulled up adjacent to him. Velasco pepper sprayed Garcia in the face and then hit him on the head with a metal pipe. Velasco proceeded to hit Garcia at least 15 times on the face, eyes, ears, chest and ribs. Garcia felt his "skull crack."
Police arrested Velasco while he was driving and recovered pepper spray and a notebook that had an entry reading, "I beat up [Garcia] because he called me and beat up [my daughter]. I swear on my children's soul." When he was arrested, Velasco did not have any injuries.
A neurosurgeon treated Garcia's skull fracture. During the procedure, he drilled a burl hole in and removed a nickel-sized piece of Garcia's skull in order to wash out contaminants to prevent infection and to assess the damage to the layers covering Garcia's brain. The fracture also compressed a fragment of Garcia's skull. The neurosurgeon tried to elevate the fragment to lower the risk of seizures, but ultimately concluded that the procedure was too risky. The neurosurgeon covered the burl hole with titanium mesh and closed Garcia's scalp.
Velasco's version of the attack was different. Velasco drove to Yui's house to take gifts to the children. He pulled up next to Garcia's car and asked Garcia if he could talk to him. Garcia grabbed Velasco's shirt and used his keys to hit Velasco on the side of the face. Velasco told Garcia to stop. Velasco pepper sprayed Garcia's face, but it had no effect on Garcia. Velasco got out of his car and hit Garcia on the head with the pepper spray can. As the two fought, Velasco injured Garcia's face, but did not hit Garcia with a pipe. Garcia screamed for Yui. Velasco got back in his car, but Garcia stopped Velasco from closing the car door and got inside with him. Velasco tried to get away, but Garcia put his fingers in Velasco's eye. Velasco reached into his bucket of tools and grabbed a wrench and dropped it on Garcia's head. Garcia got out of the van and Velasco drove away. (6RT 1547.)
The People charged Velasco with one count of attempted willful, deliberate, premeditated murder (Pen. Code, §§ 664, 187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), violation of court order involving domestic violence with a previous conviction (§ 166, subd. (c)(4); count 3), stalking (§ 646.9, subd. (a); count 4), and mayhem (§ 203; count 5). It was alleged as to counts 1 and 2 that Velasco inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). It was further alleged as to counts 1, 2, and 4 that Velasco personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(2).
All further statutory references are to the Penal Code unless otherwise indicated. --------
The jury found Velasco guilty of the lesser included offense of attempted voluntary manslaughter as to count 1 and guilty as charged as to counts 2 through 5. The jury found the great bodily injury and deadly weapon allegations true.
DISCUSSION
Velasco raises three claims on appeal. First, the trial court erred when it limited his cross-examination of Garcia regarding his prior conviction and excluded the testimony of Garcia's neighbor. Second, the mayhem conviction was not supported by substantial evidence because neither the scar on the top of Garcia's head nor the hole in his skull from the surgery constituted disfigurement or dismemberment. Third, the prosecutor committed misconduct during closing argument by suggesting defense counsel suborned perjury and by shifting the burden of proof. We disagree. I. The trial court did not violate Velasco's right to confrontation.
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to confront the witnesses against them. (Crawford v. Washington (2004) 541 U.S. 36, 38.) "The primary purpose of the constitutional guarantee is to ensure that the defendant is able to conduct a 'personal examination and cross-examination of the witness, in which [he] has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' " (People v. Louis (1986) 42 Cal.3d 969, 982.) "To deny or significantly diminish this right deprives a defendant of the essential means of testing the credibility of the prosecution's witnesses, thus calling 'into question the ultimate " 'integrity of the fact-finding process.' " ' " (People v. Herrera (2010) 49 Cal.4th 613, 621.)
"Although important, the constitutional right of confrontation is not absolute." (People v. Herrera, supra, 49 Cal.4th at p. 621.) Trial courts "retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) "In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Quartermain (1997) 16 Cal.4th 600, 623.) Evidence Code section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296.)
We review a trial court's decision to admit or exclude evidence for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) We assess federal constitutional errors under Chapman v. California (1967) 386 U.S. 18, 24. Under Chapman, we must reverse unless the People "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid.)
A. The cross-examination of Garcia
Velasco argues that the trial court improperly limited his cross-examination of Garcia regarding Garcia's violence and aggression. Specifically, the trial court prohibited Velasco from inquiring about an incident in which Garcia's ex-wife alleged that Garcia hit their daughter with a belt. Garcia pled no contest to disturbing the peace, a misdemeanor, as a result of the allegation. The trial court excluded the conviction and arrest, but allowed Velasco to ask about the underlying conduct.
During the cross-examination of Garcia, the trial court reminded Velasco's counsel to focus on the conduct and permitted him to ask two or three specific questions but warned him not to linger on the issue. Garcia testified that he spanked his daughter on the leg. Garcia also denied that he was no longer with Yui as a result of his violent disposition. He likewise denied having a violent disposition in general.
We find the trial court's limitation of Velasco's cross-examination was neither an abuse of discretion nor constitutional error. The misdemeanor conviction was only minimally probative of Garcia's credibility. While the trial court excluded Garcia's conviction, it is not clear what the conviction would have added to Velasco's defense. The critical fact was that Garcia hit his own daughter, not that he was convicted for disturbing the peace. "A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain, supra, 16 Cal.4th at pp. 623-624.) Velasco was permitted to introduce other evidence of Garcia's supposed violent disposition. Garcia admitted he had been convicted of battery on a spouse 13 or 14 years earlier. Velasco testified that he believed Garcia was a dangerous and aggressive person and that Garcia was going to hurt Velasco's children. He also claimed that Garcia threatened to kill him approximately five months before the incident and characterized Garcia as the aggressor in their confrontation. Therefore, the trial court's exclusion of Garcia's conviction and limitation of Velasco's cross-examination was neither an abuse of discretion nor a confrontation clause violation.
B. Exclusion of neighbor's testimony
Velasco also sought to introduce the testimony of Garcia's neighbor who heard Velasco's daughter screaming while Garcia was alone with her and while Yui's other children were in the backyard. The neighbor thought that the children were being neglected because they were in the backyard for a prolonged period of time. The trial court excluded this testimony as irrelevant and speculative, noting that there was no evidence the neighbor informed Velasco of the potential abuse of his daughter.
We agree with the trial court. The testimony had no bearing on Velasco's heat of passion defense because the neighbor never informed Velasco of the incident. To the extent the testimony was offered to impeach Garcia's testimony, a trial court has broad discretion "to exclude evidence offered for impeachment that is collateral and has no relevance to the action." (People v. Contreras (2013) 58 Cal.4th 123, 152.) If the testimony was relevant to show Garcia's violent disposition, its exclusion was not prejudicial as Velasco presented other evidence to support this contention including his own testimony and Garcia's prior conviction for spousal battery. II. Mayhem
Velasco's next contention is that the mayhem conviction is not supported by substantial evidence. Again, we disagree.
To determine whether a conviction is supported by substantial evidence, we assess whether " ' "a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt." ' " (People v. Rayford (1994) 9 Cal.4th 1, 23.) We " ' "view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (Ibid.)
Section 203 provides "[e]very person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem." "Section 203 generally prohibits six injurious acts against a person, three that specify a particular body part and three that do not: (1) dismembering or depriving a part of someone's body; (2) disabling or rendering useless a part of someone's body; (3) disfiguring someone; (4) cutting or disabling the tongue; (5) putting out an eye; and (6) slitting the nose, ear or lip." (People v. Santana (2013) 56 Cal.4th 999, 1003.) Despite these express acts, various types of conduct can support a mayhem conviction. (See, e.g., People v. Green (1976) 59 Cal.App.3d 1, 3 [eye rendered useless]; People v. Caldwell (1984) 153 Cal.App.3d 947, 952 [half of victim's lower lip bit off]; People v. Pitts (1990) 223 Cal.App.3d 1547, 1559 [breast nearly severed by box cutter]; People v. Newble (1981) 120 Cal.App.3d 444, 448 [three-inch facial laceration from a fingernail file]; People v. Page (1980) 104 Cal.App.3d 569, 576 [forcible tattoos on the breast and abdomen]; People v. Hill (1994) 23 Cal.App.4th 1566, 1570 [severe facial trauma requiring metal plates and wires to keep facial bones together]; People v. Thomas (1979) 96 Cal.App.3d 507, 512 [broken ankle that had not completely healed after six months].) " ' "[T]he modern rationale of the crime may be said to be the preservation of the natural completeness and normal appearance of the human face and body." ' " (Santana, at p. 1004.)
The People argue that Velasco committed mayhem when he hit Garcia in the head multiple times with a pipe causing a skull fracture necessitating the removal of a portion of Garcia's skull. Velasco asserts that this type of injury does not constitute the type of injury necessary for a mayhem conviction.
As a result of the attack, Garcia's head was scarred and his skull fractured. The injury necessitated removing a piece of his skull and left a dent in Garcia's head. The neurosurgeon could not fix the dent because it was too close to a major artery. Garcia has a titanium mesh to cover the hole in his skull. The resulting scar and dent as well as the surgically removed piece of Garcia's skull constitute both dismemberment and disfigurement. The mayhem conviction is supported by substantial evidence. III. Prosecutorial misconduct
Velasco argues that the prosecutor committed misconduct during closing argument when he said that Velasco was "spoon-fed" by his attorney and that the prosecutor shifted the burden of proof for self-defense to Velasco. Both claims are meritless.
A. Spoon-fed comment
In closing, the prosecutor argued to the jury that Velasco's heat of passion defense was inapplicable because Velasco's statements that he was angry when he attacked Garcia were not credible. The prosecutor said, "And part of the reason this would not apply in this situation in any way, shape, or form is because . . . Velasco told you on the stand. I asked him, do you have any anger? Any type of emotion? 'No.' And 'no, I don't.' 'Even a little bit?' 'No.' And then, when [defense counsel] got up, 'you were enraged, weren't you?' 'Yes, I was. I was enraged.' Well really? I mean, I gave him every opportunity to say—did you have any—like, that emotion at the time? 'No. No. I was just defending myself. I was just thinking and acting that way.' [¶] I mean, essentially he was getting spoon-fed by the attorney in this situation." Velasco claims the prosecutor's last statement suggested that his counsel suborned perjury.
We disagree. The statement commented on Velasco's credibility because of his change in testimony. The "spoon-fed" language merely pointed out that Velasco's counsel used leading questions to elicit a different response then the one he gave the prosecutor. The prosecutor's statement was a fair comment on the evidence.
Moreover, both the trial court and the prosecutor clarified the comment immediately after Velasco objected. The trial court said, "Ladies and gentlemen, this is argument. And I'm reminding you, once again, you can agree or disagree with an argument because it is not evidence quite frankly. It's just a theory of liability that's being offered to you for your consideration, nothing more. [¶] Attorneys are not trying to mislead a jury when they argue. They may reflect on the same evidence that you had heard and see it in a different way. But it doesn't mean that they're attempting to mislead you. They're giving you, again, their impression of what they believe the evidence has shown. And, again, it's up to you to reject or accept it." The prosecutor clarified by stating: "And when I say he's spoon-feeding him, I'm not talking and commenting. [Defense counsel] is doing his job. He's a defense attorney. He needs to protect his client. That's fine. [¶] What I'm commenting on is the fact that . . . Velasco—when he was on the stand, he was given every opportunity to say you know what? Yes, I acted in this total fit of anger and rage and I responded and that's what it was."
B. Shifting the burden of proof
Finally, Velasco asserts that the prosecutor shifted the burden of proof to Velasco to prove self-defense. During closing argument, the prosecutor told the jury that, just like the prosecution had to prove every element of a crime, the defense had to prove every element of self-defense. The trial court immediately intervened and correctly informed the jury that it was the prosecution's burden to prove that Velasco did not act in self-defense. Further, the prosecutor acknowledged his misstatement of law and repeated the trial court's statement that the People had to prove beyond a reasonable doubt that Velasco did not act in self-defense. Thus, the jury was left with the correct instruction that the prosecution had to prove that Velasco did not act in self-defense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.