Filed 6/24/13 P. v. Benitez CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B243018

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA084254)
         v.

JOHN GILBERT BENITEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,

Michael D. Carter, Judge. Affirmed.



         Jamilla Moore, under appointment by the Court of Appeal, for Defendant and

Appellant.



         No appearance for Plaintiff and Respondent.
       Defendant and appellant, John Gilbert Benitez, appeals from the judgment entered

following a jury trial which resulted in his conviction of simple battery (Pen. Code,

§ 242)1 and assault by means of force likely to produce great bodily injury (§ 245,

subd. (a)(1)), during the commission of which he personally inflicted great bodily injury

upon the victim who was not an accomplice to the offense (§ 12022.7, subd. (a)). The

trial court awarded Benitez five years probation, one condition of which was that he serve

the first 240 days in county jail. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       1. Facts.

              a. The prosecution’s case.

       In September 2011, Jannell Garkow had worked for almost two years in a “beer

bar” called The Bit on Live Oak Avenue in Arcadia. Garkow knew Benitez as a regular

customer at the bar. Garkow also recognized a man named Steve Wyatt as a customer

who came into the bar “once in a while.”

       Garkow was working at the bar on the night of September 10, 2011. When she

started her shift at 6:00 p.m., Benitez was already there. Before Wyatt arrived at

approximately 10:00 p.m., Garkow had served Benitez between three and five beers.

When he got to the bar, Wyatt ordered a beer. However before he could drink it, a fight

broke out between the two men. Garkow did not see how the fight began, but when she

heard a noise, she turned and saw that Wyatt had “fallen back on the bar.” When Wyatt


1
       All further statutory references are to the Penal Code unless otherwise indicated.
                                                2
got up, Benitez grabbed him by the neck or throat and started to hit Wyatt with his hand.

Wyatt‟s girlfriend approached Benitez and he hit her in the face with his fist. In the

meantime, Wyatt, who had fallen to his knees, attempted to get up. Benitez, however,

kicked Wyatt, who then lost consciousness for a short time. At this point, Garkow

walked around the bar, approached Benitez and told him to leave. Although it took

awhile, Benitez “left eventually.” Garkow then noticed Wyatt was “bleeding from his

head and his nose” and “[t]here was blood all over[.]” Wyatt indicated he was “a little

dizzy [and was acting as though] he wasn‟t sure what [had] happened.”

       The bar has video surveillance cameras and a CD made from several of the videos

taken during the altercation between Benitez and Wyatt showed “contact” between the

two men. The CD showed Benitez push Wyatt, then showed Wyatt “get up and go

towards [Benitez] and [Benitez] put his . . . arm . . . around” Wyatt‟s neck. Although

Garkow did not recognize Wyatt in the CD, she believed it showed him falling because

she had actually seen him “fall down.”

       After Benitez left the bar, Garkow, Wyatt‟s daughter and another customer took

Wyatt to the men‟s bathroom and, using a wet towel, attempted to “clean him up.” Wyatt

asked them, “ „What happened? Why did he do that?‟ ” A few minutes later, sheriff‟s

deputies arrived at the bar.

       Steve Wyatt remembered going to The Bit on September 10, 2011. When he

arrived at the bar, Wyatt saw Benitez. Wyatt had seen Benitez on prior occasions, but

had never had a conversation with him.


                                             3
       When Wyatt first arrived at The Bit on September 10, 2011, he and his girlfriend,

Maryann Rivera, sat down at the bar and Wyatt ordered a beer. Wyatt then went to the

restroom. Wyatt‟s daughter was supposed to meet Wyatt at the bar and, as he was

walking back from the restroom he was reading a text message he had received from her.

Because he was looking at his phone, Wyatt did not see Benitez and the two men bumped

into each other. Benitez said something to Wyatt which Wyatt did not understand, then

“gave [Wyatt] a two-hand shove” in the shoulders. Wyatt “flew up against the bar next

to [his] girlfriend[,] . . . put [his] phone down” and said “ „What the “F”?‟ ” When he

then got up and moved toward Benitez, Benitez “punched [Wyatt] in the face.” The next

thing Wyatt remembered was “[b]eing picked up off the ground.” He was bleeding and

someone had handed him a towel from the bar. Wyatt remembered “being in the

bathroom and looking in the mirror and wiping [his] face off with the towel.” After he

came out of the bathroom, Wyatt, who was “[d]azed and confused,” asked his girlfriend,

Rivera, who had called 911, “what [had] happened.”

       As a result of the altercation, Wyatt was required to have 12 stitches around his

eye, suffered a laceration on his nose, had bruises around his neck and a black eye. In

terms of “lasting” effects, Wyatt attributed the fact he sometimes has “foggy days,” or

days when “things are [not] as clear as they used to be,” to the injuries suffered during the

altercation with Benitez. Moreover, Wyatt‟s eye did not heal “correctly.” According to

Wyatt, “[i]t stayed swollen and continued to ooze liquid” for approximately four months.

Wyatt also suffers from headaches and dizziness. These symptoms occur approximately


                                             4
once a week and affect his ability to walk and drive. Finally, Wyatt has an approximately

three-eighths inch scar on his nose and two “jagged” scars, each of which is between one-

half and three-quarters of an inch long, on his “eyebrow area.”

         Deputy Sheriff Kyle Otis of the Los Angeles County Sheriff‟s Department and his

partner, Deputy Mikesell, were on patrol in a marked car when, at approximately

10:30 p.m. on September 10, 2011, they responded to a call directing them to The Bit

bar. There, Otis saw Benitez, who had been “detained pending an investigation.”

Benitez was hand-cuffed, taken into custody and placed in the back seat of a patrol car.

There, Otis advised him of his rights pursuant to Miranda2 and, after Benitez indicated

that he understood those rights, he told Otis he had been “attacked by a White male who

punched him in the right eye and he defended himself.” Benitez also indicated a White

female had “c[o]me at him” and he had again defended himself.

         While at the bar, Otis had observed Wyatt‟s wounds. The deputy “saw a

laceration over [Wyatt‟s] left eye split open” and “he was bleeding profusely. [Wyatt

also] had . . . some kind of a knot on his nose.”

         Benitez was transported to the jail, where Otis went through “his articles of

clothing [and] items of property.” Otis noticed there was blood on Benitez‟s shoes and

socks.




2
         Miranda v. Arizona (1966) 384 U.S. 436.
                                               5
              b. Defense evidence.

       Benitez testified he works as an “umpire and a day trader.” On September 10,

2011, Benitez went to a bar called The Bit in Arcadia. Benitez had drunk two or three

beers and had ordered another one while he was practicing at the shuffleboard table.

After throwing down a puck, he had backed up slowly. Benitez and Wyatt, whom

Benitez had never met before, “bumped into each other.” Wyatt said something which

Benitez did not understand and when Benitez asked for an explanation, Wyatt cursed at

him and “sprayed [him] with spit.” Benitez pushed Wyatt with his right hand, then

stepped back to avoid any “trouble.” Wyatt, however, fell back into the bar stools and,

when Benitez looked in that direction, he saw Wyatt place his cell phone on the bar, then

approach Benitez with a closed fist. Although he had hoped that the altercation was over,

at that point, Benitez “knew . . . [he] had to defend [him]self because [he] had no other

choice, and [he] swung back” at Wyatt. Wyatt hit Benitez in his right cheek, causing it to

bruise. Benitez then picked up Wyatt and “[wrestled] him to the ground.” As they were

fighting, Wyatt‟s girlfriend, Rivera, approached Benitez and kicked him in the left leg.

Wyatt, who was by this time on his knees, grabbed Benitez by both his legs. After

Benitez, who was still standing, was able to free his right leg from Wyatt‟s grasp, he

“backed up and . . . kick[ed] [Wyatt].” Benitez then walked out of the bar through the

back entrance.




                                             6
       Benitez had “punched” Wyatt because “he was coming at [Benitez] in a

threatening manner [with] a closed hand fist.” Benitez felt Wyatt was going to hurt him

and he had to defend himself.

       With regard to the blood found on his shoes and socks, Benitez explained: “Well,

Mr. Wyatt had me by the legs and blood was on my thigh dripping down towards my

sock, and it pooled . . . on the top of my sock and was just dripping down.” Benitez also

testified that, contrary to the deputy‟s testimony, Otis did not interview him at the scene.

The deputy simply handcuffed him and placed him in the back seat of a patrol car.

       Rosanne Velarde had met Benitez through her husband approximately 15 years

earlier. She considered Benitez a friend. They had been to each other‟s homes and saw

each other approximately once a week. Velarde considered Benitez a “gentle man” who

did not get angry easily. In the 15 years she had known him, Velarde had never seen

Benitez become violent.

       Brandon Cascarano knew Benitez because they both frequented The Bit bar.

Cascarano was at the bar on the evening of September 10, 2011 and he saw some of the

fight between Benitez and Wyatt. Cascarano was at the bar, facing the bar, when he

heard a commotion and voices. When he turned to see what was happening, Cascarano

saw Wyatt moving toward Benitez with his arm bent as though “he was going for a

punch.” Wyatt punched Benitez, who then hit Wyatt back. The two men were punching

at and wrestling with each other. Cascarano, who saw blood after the two men started to

hit one another, also saw Wyatt holding Benitez by the knees. Benitez broke free of


                                              7
Wyatt‟s grasp by backing up and “kind of kick[ing his leg] away from [Wyatt].” After he

had freed himself from Wyatt‟s grip, Benitez walked out the bar‟s back entrance.

       2. Procedural history.

       Following a preliminary hearing, on May 15, 2012 an amended information was

filed, the first count of which alleged that on September 10, 2011 Benitez committed the

crime of battery with serious bodily injury, a felony in violation of section 243,

subdivision (d). It was further alleged with regard to that count that the offense was a

serious felony (§ 1192.7, subd. (c)) requiring registration (§ 290, subd. (c)) and that time

imposed for the offense was to be served in state prison (§ 1170, subd. (h)(3)). In the

second count it was alleged that, on or about September 10, 2011, Benitez committed

assault by means of force likely to produce great bodily injury, a felony (§ 245,

subd. (a)(1)). It was further alleged as to that count that, because Benitez had personally

inflicted on the victim great bodily injury (§ 12022.7, subd. (a)), the offense was a serious

felony (§ 1192.7, subd. (c)(8)).

       Before trial it was determined that Benitez faced a term of seven years in prison.

The People had made Benitez an offer of five years of formal probation, one condition of

which would be that he serve one year in county jail. Defense counsel indicated that

Benitez had counter-offered with a plea to misdemeanor battery and “straight probation,”

an offer the prosecution was not willing to accept.




                                              8
       At an Evidence Code section 402 hearing, the district attorney indicated Benitez

had suffered a conviction for violating section 415 in 2006.3 However, since the

prosecutor did not know the facts underlying the conviction, the trial court determined the

conviction “ha[d] no validity” or “weight.” In addition, it could be prejudicial. The jury

might conclude that, because Benitez had a prior misdemeanor conviction, “he [might] be

more likely to be guilty of [the present offense].”

       At the same proceedings, the prosecutor disclosed that she had just recently

learned the victim in this matter had been arrested in 1982 for committing battery in

violation of section 242 and had been subsequently convicted of violating section 415.

Defense counsel, the prosecutor and the trial court all agreed that the conviction was too

remote to be relevant and, accordingly, it would not be mentioned at trial.

       With regard to Wyatt‟s medical records, the trial court determined only portions of

the records would be allowed into evidence because much of the information contained in

them amounted to inadmissible hearsay. The prosecutor and defense counsel agreed to

prepare a stipulation regarding which portions of Wyatt‟s records would be presented to

the jury. However, there was one aspect of the records on which counsel could not agree.

It was indicated a CT scan showed Wyatt had suffered “a fracture of the superior aspect

of the nasal bone, but” it was “of uncertain age [although it] could be relatively acute.”

The prosecutor asserted, although one could not tell from the report how old the injury

3
       Section 415 prohibits unlawfully fighting or challenging another person to fight in
a public place, maliciously and willfully disturbing another by loud and unreasonable
noise and using offensive words which are inherently likely to provoke an immediate,
violent reaction in a public place.
                                              9
was, since the report indicated it “could be relatively acute,” it should be allowed. The

fracture could easily have resulted from the incident involving Benitez. Defense counsel,

on the other hand, argued the evidence was “speculative.” Counsel indicated there was

no expert testimony indicating the fracture “resulted from the 9/10/201[1] incident.”

Counsel continued, “It‟s simply a remark there is evidence in a CT scan of a fracture of

uncertain date. I think its prejudicial effect . . . outweighs any probative [value].” The

trial court determined, pursuant to Evidence Code section 352, the probative value of the

evidence outweighed any prejudicial effect it might have “because [it] seem[ed] to be a

neutral sentence that [could] be argued by both sides.” The court indicated it would

allow the evidence to be presented at trial.4

       After the prosecution presented its case, defense counsel moved for “a judgment

of acquittal for insufficiency of the evidence[.]” (§ 1118.1.) Counsel argued the

testimony had not been convincing and the CD simply showed “people wrestling on the


4
        The stipulation read in relevant part: “[T]hat Steve Wyatt was treated by Dr. Ivan
Rokos at Methodist Hospital. That he was admitted at 12:37 a.m. on September 11,
2011. That the results of the physical exam were as follows: [¶] His face [was]
significant for irregularly shaped stellate . . . laceration of his left eyebrow extending into
his left eyelid. This wound [was] about three centimeters long. The nose ha[d] an
abrasion in the mid aspect . . . , but there [was] no active nasal bleeding. . . . [¶]
Mr. Wyatt was diagnosed as having an open wound of the forehead in the area of the left
eyebrow and a nose abrasion. He received 12 stitches in his left eyebrow area. [¶] A CT
scan was performed and the results were examined by Dr. Leon Lis. The scan showed
some focal soft tissue swelling along the left lateral orbit area with tiny air bubbles in the
soft tissues consistent with the history of a laceration. The eyeball itself appear[ed]
intact. The CT scan also showed a fracture of the superior aspect of the nasal bone, but
this [was] only partially included [in] the study. [The fracture] is of uncertain age, but
could [have been] relatively acute.”

                                                10
floor.” Counsel indicated, at worst, “this [case presented] mutual combat.” The

prosecutor opposed the motion, asserting “there [was] no evidence . . . Mr. Wyatt ever

punched Mr. Benitez.” The trial court denied the motion “based on the evidence . . .

presented thus far . . . .”

       After hearing the trial court‟s instructions and argument by the parties, the jury

retired to deliberate on the afternoon of May 17, 2012. At 12:11 p.m. on May 18, 2012,

the jury foreperson informed the trial court the jury had reached verdicts. After the

foreperson handed the verdict forms to the bailiff, who in turn handed them to the court,

the trial court indicated it “need[ed] to have the jury go back and take a look at the verdict

forms.” The court stated it wanted the jury to “take a look” at the forms, then referred the

jury to “jury instruction 3517.”5

       Several minutes later, at 12:21 p.m., the jury returned to the courtroom. The

foreperson handed the verdict forms to the bailiff, who in turn handed them to the court.

The trial court then instructed the court clerk to read the verdicts. With regard to count 1,

the clerk read: [¶] “We, the jury, . . . find the defendant, John Gilbert Benitez, not guilty

of battery with serious bodily injury upon the person of Steve Wyatt in violation of . . .

section 243[, subdivision] (d) . . . .” The clerk continued, “Same title of court and cause,

count 1, verdict: [¶] We, the jury, . . . having found the defendant not guilty of battery


5
       Jury Instruction No. 3517 reads in relevant part: “If all of you find that the
defendant is not guilty of a greater crime, you may find him guilty of a lesser crime, if
you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser
crime. A defendant may not be convicted of both a greater and lesser crime for the same
conduct.”
                                             11
with serious bodily injury, find the defendant, John Gilbert Benitez, guilty of simple

battery in that he did willfully and unlawfully use force and violence upon the person of

Steve Wyatt in violation of . . . section 242, a lesser crime than that charged in count 1 of

the information.”

       With regard to count 2, the court clerk read: “We, the jury, in the above-entitled

cause, find the defendant, John Gilbert Benitez, guilty of assault by means likely to

produce great bodily injury on Steve Wyatt in violation of . . . section 245[, subdivision]

(a)(1) . . . . [¶] Further, we find true the allegation pursuant to . . . section 12022.7[,

subdivision] (a) that in the commission of the above offense the defendant personally

inflicted great bodily injury upon Steve Wyatt not an accomplice to the . . . offense.”

       The clerk then polled the jury and, when asked, each of the 12 jurors indicated

these were their verdicts.

       The trial court set sentencing for June 7, 2012, remanded Benitez with no bail and

ordered a probation and sentencing report. At proceedings held on June 11, 2012, the

trial court indicated it had “read and considered all of the declarations filed, along with

the People‟s Sentencing Memo and the Defense Statement in Mitigation, Statement in

Support of Probation, and Notice of Motion to Strike the Enhancement and Punishment.”

The court then heard oral argument from both the People and defense counsel. The

prosecutor asserted the crime had involved great violence and the victim suffered great

bodily harm. In addition, Benitez “endangered the safety of the numerous innocent

bystanders.” However, the prosecutor indicated that “[i]n light of the fact . . . the


                                               12
defendant [had no] other substantial criminal history or felonies, the People [were]

recommending [the] midterm [of six years in state prison] instead of [the] high

term . . . .”

        Defense counsel presented to the court Ulysses Gutierrez, a minister and director

of a Los Angeles County program which provides probationers with “probation services

and/or rehabilitation services.” Gutierrez indicated Benitez would be eligible for the

services, which included everything from “recovery program[s]” to programs “dealing

with anger management.” Gutierrez explained: “Our final goal is to work with the client

and the family to develop a comprehensive developmental plan. The plan stipulates that

the client has to report to us three times a week. Based on the client‟s needs, that could

also include drug testing through one of the agencies in our network.”

        Benitez then addressed the court. He stated, in relevant part: “My intentions were

not to injure anybody, and I feel bad that Mr. Wyatt was injured. I don‟t know if he

received the information from the later point of the incident where I had called to make

sure he was okay and I returned back to the bar to check and confront the sheriff to make

sure everything was okay. And I tried to do it like a man, do the right thing. [¶] And

just reflecting on that, I am hoping . . . you find it in your heart that I‟m not a violent

man. I was trying to do the right thing. And in this case the jury decided and not in my

favor, so I am here at your mercy and hoping you would see that and you would view that

and read that.” Defense counsel then addressed the court and indicated “[p]robation

[was] the right thing to do.” Counsel continued, “This man has a negligible history of


                                               13
any contact with law enforcement or any criminal history. His behavior over the years

has been unremarkable as far as the criminal justice system [is concerned]. He deserves a

chance to show this was an isolated incident . . . .”

       After indicating this was not a “state prison” case, the trial court suspended

imposition of sentence and placed Benitez on probation for a period of five years, one

condition of which was that he serve the first 240 days in county jail. The court then

awarded Benitez presentence custody credit for 30 days actually served and 30 days of

good time/work time. The trial court ordered Benitez to pay a $200 restitution fine

(§ 1202.4, subd. (b)), a stayed $200 probation revocation restitution fine (§ 1202.44), a

$40 court security assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction

assessment (Gov. Code, § 70373). The trial court stayed imposition of punishment on the

great bodily injury enhancement and awarded Benitez 180 days of probation, the time to

run concurrently with that imposed for the felony, for Benitez‟s conviction of the

misdemeanor of simple battery. After setting a hearing at which it would be determined

how much restitution Benitez would be required to pay for the victim‟s injuries, the trial

court informed Benitez of the conditions of his probation, then ended the proceedings.

       Benitez filed a timely notice of appeal on August 2, 2012.

                                     CONTENTIONS

       After examination of the record, appointed appellate counsel filed an opening brief

which raised no issues and requested this court to conduct an independent review of the

record.


                                              14
      By notice filed April 5, 2013, the clerk of this court advised Benitez 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




                                                CROSKEY, J.


      We concur:


                    KLEIN, P. J.




                    KITCHING, J.




                                           15
