Filed 12/19/13 P. v. Herrera CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B241847

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA381936)
         v.

EDUARDO HERRERA et al.,

         Defendants and Appellants.



         Appeals from judgments of the Superior Court of Los Angeles County. Lisa B.
Lench, Judge. Affirmed.
         William L. Heyman, under appointment by the Court of Appeal, for Defendant
and Appellant Edward Justin Herrera.
         Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant Eduardo Herrera.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
                                            _____________________
       Eduardo Herrera (Eduardo) and Edward Herrera (Edward), father and son, each
appeal from their convictions for two counts of assault with a deadly weapon, arising
from a series of drunken confrontations with a nightclub security guard. We affirm.


                                       Background
The facts
       At about 9:00 o’clock in the evening on March 18, 2011, Eduardo Herrera
(Eduardo), his 21-year-old son Edward Herrera (Edward), his sister Jessica Herrera, and
her adult son Robert Fregoso, went to the Three Clubs, a Los Angeles bar. That night, a
Tuesday, was the club’s regular night to present amateur stand-up comedy routines, and
the club was relatively crowded, with about 120 patrons. Although Edward had intended
to participate in the comedy presentations, the party had arrived too late.
       At about 10:30 or 11:00 p.m. Eduardo and Edward were escorted out of the club
by the club’s security guard, Cornelius Fredrick, after Eduardo incessantly heckled the
comedy-room participants, and Eduardo and Edward had cursed and shoved another
patron in the bar. By then they had been served more than two drinks each, they were
cursing and stumbling, and both seemed to Fredrick to be very intoxicated.
       When Fredrick again went outside the club a few minutes later, he saw Eduardo
walking away with a bar stool that he used at the club’s front door. When Fredrick
approached and said the police had been called, Eduardo dropped the stool and began
cursing. For a few minutes Eduardo and Edward shouted curses and racial epithets at
Fredrick, and traded curses with a group of club patrons who had by then come out a side
door in response to the ruckus.
       At that point, Edward ran to his car, retrieved a baseball bat from its trunk, and
swung it at the gathered club patrons, who retreated into the club. As Fredrick retrieved
the stool, another club employee observed Edward swinging a chain with a spiked ball on
its end in a threatening way, while Fredrick held the stool in front of himself for
protection. Either Eduardo or Edward threw a glass bottle, then they drove away.



                                              2
Although the bartender had called 911, Fredrick told the operator that the police were not
needed because no one had been injured and by then Eduardo and Edward had left.
       Eduardo and Edward returned less than an hour later, stopping their car in the
driveway to the club’s parking lot, and cursing at patrons outside the club. Holding a
chain and taking a bat from the car’s trunk, Edward swung the bat toward a patron,
causing the patron to flee. Eduardo took another bat from the car’s trunk, and they both
approached Fredrick. Both Eduardo and Edward struck Fredrick with their bats, and a
witness reported to the police that Edward also struck Fredrick with the chain. After
Fredrick pinned Eduardo to the ground, punching his face, according to Eduardo’s sister
Jessica, she sprayed Fredrick repeatedly with pepper spray, then shocked him about six
times with a taser that she took from her purse.
       The police arrived while Jessica was attacking Fredrick. Fredrick and Eduardo
complied with the police command to stand against the wall; Jessica and Edward were
stopped when they attempted to leave. From the gutter or sidewalk nearby, the police
recovered a metal chain with spikes on the end, and a metal bat. From the appellants’ car
they recovered a wooden bat. A few days later, the club’s bartender found an unknown
taser on the back seat of her car. She said she often parked her car with the sunroof open
while she was at work at the club.
The case
       In an amended information filed October 25, 2011, Eduardo, Edward, and Jessica
were charged with two counts of assault with a deadly weapon: in count 1, with a bat;
and in count 2, with a chain. (Pen. Code, § 245, subd. (a).)1 Counts 1 and 2 were both
alleged to be serious felonies (§ 1192.7, subd. (c)), and both counts were alleged to be
violent felonies for which prison custody time is to be served in state prison (§ 1170,
subd. (h)(3)). In count 5, Eduardo was also charged with the crime of carrying a
concealed dagger. (§ 12020, subd. (a)(4).) And it was alleged (pursuant to § 1170.12,



       1
           All statutory references are to the Penal Code unless otherwise specified.


                                               3
subds. (a)-(d) & § 667, subd. (b)), that Eduardo had sustained a prior conviction of a
serious or violent felony, robbery. (§ 211.)2
       A jury acquitted Eduardo of the count 5 charge, but deadlocked as to counts 1 and
2 against both Eduardo and Edward, resulting in a mistrial as to those counts. After a
retrial on those counts before a second jury, Eduardo and Edward were found guilty on
both counts.
       Eduardo admitted the truth of the allegation of a prior strike conviction. The trial
court denied his motion to reduce the felony convictions to misdemeanors. As to count 1,
Eduardo was sentenced to the low term of two years, with five additional years for the
prior felony conviction. However, the court struck the prior strike conviction, and stayed
the count 2 sentence pursuant to section 654. Eduardo was ordered to pay a restitution
fine, a criminal conviction assessment, and a court operations fee. A parole revocation
fine was imposed and suspended, and he received appropriate custody credits.
       The trial court also denied Edward’s motion to reduce the felony convictions to
misdemeanors, but suspended imposition of sentence and placed Edward on three years’
probation, with a restitution fine, a criminal conviction assessment, a court operations fee,
a suspended parole revocation fine, and appropriate custody credits.
       Eduardo and Edward filed timely notices of appeal. Edward’s appeal contends
that the trial court erred by refusing to give the jury a “defense of others” instruction; that
it abused its discretion by denying his motion to reduce the count 2 conviction to a
misdemeanor; and that trial counsel rendered ineffective assistance with respect to these
issues. Eduardo joins in Edward’s contentions, and contends also that the trial court erred
by instructing the jury on the use of witnesses’ pretrial statements (a contention in which
Edward joins).




       2
         In addition to the count 1 and 2 charges, Jessica was also charged with felony use
of pepper spray (§ 12403.7, subd. (g)), and assault with a taser (§ 244.5, subd. (b)). The
record does not reflect the disposition of the charges against Jessica, and she is not a
party to this appeal.

                                                4
                                         Discussion
       1. The Court Did Not Err In Instructing The Jury About The Use Of
             Witnesses’ Pretrial Statements.
       The trial court instructed the jury in the terms of CALCRIM No. 318:
                You have heard the evidence of statements that a witness made
       before the trial. If you decide that the witness made those statements, you
       may use those statements in two ways: 1. To evaluate whether the
       witness’s testimony in court is believable; and 2. As evidence that the
       information in those earlier statements is true.
       Eduardo and Edward contend that this instruction was applicable to pretrial
statements made by Fredrick, the victim of their assaults, by Misty Swain, the Three
Clubs’ bartender, and by Anita Delbourgo, a witness to some of the events outside the
club. The pretrial statements and testimony of each of these witnesses implicated
Eduardo in the count 1 crime of assault with a bat, and in abetting Edward in the count 2
crime of assault with a chain.
       In a transcript of a 911 call, admitted into evidence, the bartender had reported that
the bar’s security guard was being assaulted with “bats and chains.” Officer Meneses
testified that when he interviewed Delbourgo at the scene of the incident, she told him
that she had seen a taser and a chain being used as weapons against the club’s security
guard (but she did not mention anyone with a bat). Officer Kim testified that Fredrick
told him at the scene that Edward had hit him numerous times with both a bat and a
chain, and that Fredrick had not mentioned Edward threatening customers with a bat.
Officer Kim testified that he had not asked Fredrick at the scene whether he had hit
Eduardo, but he was impeached on cross-examination with his prior testimony that he
had asked Fredrick that question, to which Fredrick had responded that he had not.3
       Eduardo and Edward contend that by telling the jury that it could use the
witnesses’ pretrial statements as evidence that the information in the statements was true,


       3
           Appellants do not contend that the admission of any of this evidence was error.

                                               5
the instruction in CALCRIM No. 318 effectively endorsed truth of the pretrial statements
and the consistent trial testimony. According to appellants, the jury could only have
understood this instruction to raise an unsupportable presumption that the witnesses’
statements were true merely because they had been made before trial. But contrary to the
instruction, they contend, whether the statements were made before trial did not render
the witnesses’ statements to be more likely to be true than false. They contend that the
instruction therefore relieved the prosecution of its burden of proving its case beyond a
reasonable doubt, violating the appellants’ due process rights to a fair trial under the
Sixth and Fourteenth Amendments to the United States Constitution. (Sullivan v.
Louisiana (1993) 508 U.S. 275, 278 [prosecution bears burden of proving all elements of
offense beyond a reasonable doubt].)4
       We see no reasonable possibility that the jury understood from the instruction in
CALCRIM No. 318 that the truth or believability of the witnesses’ pretrial statements
was to be presumed by virtue of having been made before the trial. By instructing that
“[i]f you decide that the witness made those [pretrial] statements,” the jury “may” use the
statements in evaluating both the statements and the witness’s testimony, the instruction
left it wholly within the jury’s discretion to decide not just whether the statements had
been made, but also whether their impact should be to strengthen or to weaken the
witness’s credibility and the testimony’s veracity.
       The cited examples reflect pretrial statements that are for the most part consistent
with the witnesses’ trial testimony, but reflect some inconsistencies as well. It may well
be (as the appellants contend) that as to pretrial statements by these witnesses that were
consistent with their trial testimony, the jury might have found their testimony to be more
credible than if the pretrial statements had been inconsistent with their trial testimony.
That would be a natural result of the jury’s rational evaluation of the evidence, however,

       4
        Although the appellants failed to preserve this issue by objecting to or seeking
modification of the instruction in the trial court, we review the argument on the merits
because error to which no objection was interposed may nevertheless warrant review, “if
the substantial rights of the defendant were affected thereby.” (§ 1259; People v. Guerra
(2006) 37 Cal.4th 1067, 1138.)

                                              6
and would not indicate its reliance on an unfounded presumption favoring the
believability of the statements or the testimony. It is not the fact that one statement
preceded the other that is relevant to the credibility determination, but the consistency or
inconsistency of the statements with one another. (Evid. Code, §§ 1235, 1236.)
       We reject appellants’ contentions that CALCRIM No. 318 is ambiguous and
misleading, and that the court in People v. Hudson (2009) 175 Cal.App.4th 1025, 1028
misapprehended its meaning in reaching this same conclusion. We find no error and no
prejudice in the trial court’s use of CALCRIM No. 318 to instruct the jury with respect to
the evaluation of pretrial statements.
       2. The Court Did Not Err By Refusing Edward’s Proffered Instructions On
           Defense Of Others.
       Edward’s trial counsel requested that the jury be instructed on the right to use
force as a defense of others. The theory was that Edward could be found not guilty of the
count 2 charge of assault with a chain if the jury were to conclude that he had assaulted
Fredrick with the chain in reasonable defense of his father, who was being held down and
hit by Fredrick when the police arrived.5
       Finding that the theory was not supported by evidence, the trial court denied the
request. Edward contends that the refusal to instruct on this theory was error of
constitutional proportions, and that his counsel’s failure to persuade the trial court of the
theory’s factual support constituted ineffective assistance of counsel.


       5
         CALCRIM No. 3470 provides in pertinent part that a defendant acts in lawful
defense of another and is not guilty of assault, if (1) he reasonably believed that someone
else was in imminent danger of suffering great bodily injury; (2) he reasonably believed
that the immediate use of force was necessary to defend against that danger; and (3) he
used no more force than was reasonably necessary to defend against that danger.
CALCRIM No. 3471 instructs that an aggressor or fighter has a right to self-defense only
if he has tried to stop fighting, he has communicated that to his opponent, and he has
given his opponent an opportunity to stop. CALCRIM No. 3472 instructs that there is no
right of self-defense for one who provoked a fight as an excuse to use force. CALCRIM
No. 3474 instructs that the right to use force in self-defense or defense of another
continues only until the danger no longer exists or reasonably appears to exist.

                                              7
       A defendant is entitled to instructions on all defenses for which the record contains
substantial evidence—evidence that, if believed, would be sufficient for a jury to find a
reasonable doubt as to defendant’s guilt. (People v. Michaels (2002) 28 Cal.4th 486, 529;
People v. Salas (2006) 37 Cal.4th 967, 982-983.) The question whether the trial court
erred in refusing to instruct the jury on the defense-of-another theory therefore turns on
whether the record contains substantial evidence that, if believed by the jury, would raise
a reasonable doubt as to whether Edward assaulted Fredrick with the chain in a
reasonable effort to defend his father from Fredrick’s blows.
       Upon review, we find the court was correct in refusing to instruct the jury on the
elements of that defense. The evidence is not sufficient to support a determination that
Edward assaulted Fredrick with the chain in a reasonable effort to defend his father.
       The evidence concerning Edward’s assault on Fredrick with the chain is
conflicting. Jessica, Edward’s aunt, testified that Edward typically wore the chain
attached to his belt and wallet, and that he was wearing it the night they went to the Three
Clubs bar. Fredrick saw the chain in Edward’s hand after the bar-stool incident, and
another club employee saw Edward swinging the chain toward Fredrick in a threatening
and offensive manner, not defensively. Fredrick testified that he had been threatened
with the chain, and both Fredrick and another witness told the police the night of the
incident that Edward hit Fredrick with the chain. The police later found the chain that
Edward had worn to the club that night—described as a metal chain with spikes on the
end—on the sidewalk next to the bat.
       The only evidence of aggressive behavior by Fredrick was that, while being hit
with bats by Eduardo and Edward, he grabbed Eduardo in a bear hug, held him to the
ground, perhaps hitting him in the face, until the police arrived.6 There was no evidence

       6
          Jessica testified that Fredrick punched Eduardo continuously in the face, 20 or
more times, while holding him down. Fredrick testified that he hit Eduardo once or twice
while holding him down, but was impeached by his earlier denial that he had hit Eduardo
at all, and by photos of Eduardo’s face after the incident. But the testimony was without
conflict that Fredrick had grabbed Eduardo and pulled him to the ground only after being
hit multiple times by Eduardo’s and Edward’s bats.

                                             8
that Fredrick had instigated the violence; Eduardo and Edward were the only ones who
were armed, and the only evidence was that they—not Fredrick—had instigated the use
of force, both initially and upon their return after having left the club. No evidence at all
indicated an intention on the part of either Eduardo or Edward to end the fight at that
point. The evidence therefore could not support a determination that Edward had
assaulted Fredrick with the chain in an attempt to protect his father from Fredrick’s
blows. Even the testimony of Jessica, Edward’s aunt, was inconsistent with that theory.
She testified that she came out of the club to find Fredrick holding Eduardo and hitting
him in the face, but that Edward was doing nothing to defend Eduardo.
       Nor is there any evidence from which the jury could have found that such an
attempt would have been reasonable, in light of the uncontradicted evidence that Eduardo
and Edward had been at all times the aggressors. In short, the record is completely
devoid of even the slightest evidence to support a defense theory that Edward acted either
in self-defense or in defense of Eduardo in using his chain against Fredrick, as the trial
court correctly ruled.
       3. The Trial Court Did Not Abuse Its Discretion By Refusing To Reduce The
           Defendants’ Convictions To Misdemeanors.
       In the trial court the defendants each sought reduction of their count 1 and count 2
convictions for assault with a deadly weapon, originally charged as felonies under the
“Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12) to misdemeanors. They ask this
court to find that the trial court abused its discretion in refusing those requests with
respect to the count 2 offense of assault with the chain. We find no abuse of discretion.
       Assault with a deadly weapon, the crime for which the defendants were convicted,
is referred to as a “wobbler” because it is punishable, in the trial court’s discretion, by
imprisonment in either state prison or county jail. (§ 245, subd. (a)(1); People v. Park
(2013) 56 Cal.4th 782, 789-790.) “When a crime is punishable, in the discretion of the
court, either by imprisonment in the state prison . . . or by fine or imprisonment in the
county jail, it is a misdemeanor for all purposes . . . [¶] . . . [¶] (3) When the court grants
probation to a defendant without imposition of sentence and at the time of granting


                                               9
probation, or on application of the defendant or probation officer thereafter, the court
declares the offense to be a misdemeanor.” (§ 17, subd. (b)(3).)
       The factors that guide the trial court’s discretion in considering whether to reduce
a conviction to a misdemeanor are summarized in People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 978. There, the court held that while the applicability of the Three
Strikes law to the defendant’s circumstances is relevant, it “is not singularly dispositive”
of the issue. (Id. at p. 973.) Trial courts retain discretion to determine whether a wobbler
should be reduced to a misdemeanor at the time of sentencing. (Id. at pp. 974-975.) The
relevant factors include, generally, “‘the nature and circumstances of the offense, the
defendant’s appreciation of and attitude toward the offense, or his traits of character as
evidenced by his behavior and demeanor at the trial.’” (Id. at p. 978.)
       Counsel argued the significance of these (and other) factors, and the trial court
addressed these factors in denying the defendants’ motions to reduce their convictions to
misdemeanors. With respect to Eduardo the court adopted the prosecutor’s
characterization of his conduct as more accurately an attack on Fredrick than a typical bar
fight, with the use of deadly weapons and exhibiting repeated confrontations, returning
for more after having left the scene, with Eduardo influencing his impressionable son to
engage in criminal conduct. And as to Edward, the court recognized that he was young at
the time of the offense (21 years old), that he had no record of violence, that his only
prior conviction was for a misdemeanor for which he had been placed on probation, and
that the two strikes resulting from his conviction in this case would leave him with “no
wiggle room for his future. None. Zero.” But it denied Edward’s motion to reduce his
convictions to misdemeanors, concluding (as it has for Eduardo) that the conduct shown
by the evidence is not “misdemeanor conduct.” The court went on to explain that these
same factors—Edward’s youth, his lack of a significant criminal record, and the adverse
consequences of the imposition of two strikes resulting from his conviction in this case—




                                             10
influenced its decision to place Edward on probation rather than committing him to any
substantial incarceration.7
       The law gives the trial court broad discretion in determining whether to reduce a
defendant’s conviction from a felony to a misdemeanor. “By making [the charged
offense] a wobbler, the Legislature has determined that either a misdemeanor or a felony
punishment may be appropriate in the discretion of the sentencing court. The Legislature
has also granted broad authority under the express terms of section 17(b) to make that
determination. And, the Legislature chose not to compromise the exercise of the court’s
discretion when it enacted the three strikes law. [Citation.]” (People v. Superior Court
(Alvarez), supra, 14 Cal.4th at pp. 980-981.) The burden of demonstrating an abuse of
discretion—that the sentencing decision was arbitrary or irrational—is on the party
challenging the sentence imposed by the court. (Id. at p. 977.)
       The appellants have failed to meet that burden. Edward argues that it is “simply
wrong” that he must “spend the rest of his life under the shadow of a potential third-strike
sentence because of his drunken acts” on the night of his crime, and that “[t]he public
interest is not served by such an outcome.” But it was within the trial court’s discretion
to determine otherwise on the record before it, with respect to both the defendants. This
court will not say gainsay its determination. That’s what discretion is all about.
       Nothing in the record indicates that in reaching its sentencing determinations the
court strayed in any way beyond the factors that are appropriate, or that its resulting

       7
          In this court Edward argues that multiple factors indicate a reduction of his
felony convictions to misdemeanors would be appropriate, including that the evidence
concerning his use of the chain was so conflicting as to be “troubling,” that the chain was
worn by Edward as a fashion accessory rather than a weapon that Fredrick suffered no
serious injury from the chain, that Edward’s conduct was mitigated by the fact that he
was “extremely inebriated,” that he was young and his brain was “not fully mature,” that
he was acting under his father’s guidance and influence, that his criminal record was
trivial, that he had been employed and had no known gang connections, that the jury
might have erroneously convicted him of two assaults for the same conduct, that he might
have used the chain in his father’s defense, that he had acted respectfully throughout the
trial proceedings, that he might have been offered a beneficial pretrial plea agreement,
and that this case will result in two strikes against him under the Three Strikes law.

                                             11
sentences were unjustified by the record. We find no abuse of discretion in the trial
court’s denial of the defendants’ requests that it reduce their felony convictions to
misdemeanors.
                                        Disposition
       The judgments are affirmed.
       NOT TO BE PUBLISHED




                                                  CHANEY, J.


We concur:



              ROTHSCHILD, Acting P. J.



              JOHNSON, J.




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