Filed 11/26/14 P. v. Cano 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B255374

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA085405)
         v.

CHRIS A. CANO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn
Solorzano, Judge. Affirmed.


         Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant
and Appellant.


         No appearance for Plaintiff and Respondent.
       Defendant and appellant, Chris A. Cano, appeals from the judgment entered
following a jury trial which resulted in his conviction of the felony of assault with a
deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 during which he inflicted great bodily
injury upon the victim (§ 12022.7, subd.( a)) and misdemeanor battery (§ 242). The trial
court sentenced Cano to seven years six months in prison. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts.
              a. The prosecution’s case.
       Margaret Rose McCarte and Martha Andreani attend St. Augustine Church on
Jasmine Street in Culver City. The two women were at the church on the grounds near
the church school on the evening of October 3, 2013 helping to set up for a fund raiser
and festival which was to be held there that weekend. McCarte, Andreani and a number
of other parishioners finished setting up at approximately 9:30 p.m. and began to walk to
their cars, which were parked in a lot between the parish offices and the church. As she
was walking past the parish center, Andreani heard someone yell, “ ‘Help.’ ” and “ ‘Call
911.’ ” When she looked toward the parish hall, Andreani saw “a man in a wheelchair
and another man s[t]anding right next to him, and then another one [standing in the area]
as well.” The two men standing near the man in the wheelchair were on the “husky” side
and wearing white T-shirts.
       McCarte, who was walking with Andreani, also saw a man sitting in a wheel chair.
She heard the man in the wheelchair begin to yell something and, as she got closer to him
saw, in addition to the two men standing immediately next to him, a third man standing
on the church steps. The man standing on the steps had a cut on his face. McCarte then
realized the man in the wheelchair was yelling, “ ‘Help, help, help. We need help.’ ”
       As McCarte and Andreani continued to walk toward the church, Andreani saw one
of the two men standing right next to him take his left hand and do “a back slam on . . .



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

                                              2
the face of the man in the wheelchair.” At that point, Andreani turned around and walked
to her car to get her cell phone.
       In the meantime, McCarte saw the two men who had been standing just by the
man in the wheelchair walk quickly across the parking area toward an exit. When she
asked the men what was going on, one of them responded, “ ‘Those two guys over there
are fighting.’ ” After one of the two men had answered McCarte’s question, the men
continued to walk at a brisk pace toward the exit and out onto the street. McCarte did not
get a good look at either man. She had, however, assumed one of them was Hispanic
“because of [his] accent when he answered [her] question.”
       As McCarte approached the man in the wheelchair, she saw that the man standing
on the church steps “had his hands kind of up on his face and there was a lot of blood all
over the place.” By that time Andreani had retrieved her cell phone and called the police
and an ambulance. One of the parish priests and his son who had come out of their
offices were using paper towels to attempt to help the man stop the bleeding from his
face. At the same time, the man in the wheelchair, who appeared extremely agitated,
continued to yell. According to McCarte, he kept saying, “ ‘He’s going to kill us. He’s
going to kill us. He’s not going to stop until he kills us.’ ”
       Police officers and an ambulance arrived and, after McCarte and the others had
given them their statements and contact information, they left the area. On the way to her
car, McCarte did not remember seeing “any weapons or knives.”
       Daniel Mendoza (Mendoza) stated he is homeless and sleeps at the church every
night. The members of the church know that Mendoza and, at times his father, Louis
Mendoza, who is also homeless, sleep there and they allow them to do so.
       Both Mendoza and his father drink alcoholic beverages and, on October 3, 2013,
they each had “a couple of [beers].” Although Mendoza had, for approximately the last
five years, “h[u]ng out” with his father, at the time of trial he had not seen him for several
weeks. Mendoza had been unable to try to call his father because his father’s cell phone
had been stolen and Mendoza had no idea where his father was. The last time he had



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been with his father, they had gotten into an argument, however it was “not” “normal” for
Mendoza to have not seen his father for so long.
      Mendoza had met Cano “on the streets” approximately one year earlier. Cano,
who lived with his brother and mother, had “hung out” with Mendoza and the two men
occasionally shared a beer. On at least one other occasion Cano, who was unemployed,
had asked Mendoza for money to buy beer. One time, when Mendoza told Cano he did
not have any money, Cano hit Mendoza on his left cheek just under his eye. Mendoza
had not hit Cano back. He had simply gathered up his things and walked away. Cano
had followed Mendoza for a time, but Mendoza eventually “got away from him.” On a
later occasion, Mendoza had asked Cano for money and Cano had given it to him.
      Mendoza had seen Cano carrying a knife a couple of times. Although on each
occasion Cano had a different knife, both were “flip” knives and Cano had appeared to be
“[j]ust messing around with [them]” Then, a couple of weeks before the October 3rd
incident at the church, Mendoza had gone into a surplus store with Cano and watched as
Cano bought a third knife.
      At approximately 9:00 p.m. on October 3, 2013, Mendoza and his father, who had
spent the day together, were crossing a street on their way to the St. Augustine Church
when they passed Cano and Cano’s friend, Rick. Rick asked Mendoza if Mendoza could
get him some marijuana. Mendoza simply said “no” and kept walking.
      When Mendoza and his father reached the church, they realized there were people
still inside so Mendoza sat down on the steps and he and his father talked while they
waited for everyone to leave. Approximately one hour later, Mendoza saw Cano and
Rick walking toward him and his father through the church parking lot. While Rick
stood behind Mendoza’s father’s wheelchair, Cano approached Mendoza, sat down next
to him and said, “ ‘Give me 20 bucks.’ ” Mendoza, who was frightened because Cano
had already hit him once, nevertheless told Cano he did not have any money. At that
point Mendoza “felt the cut.” Mendoza put his hand up to the left side of his face, then
quickly stood up and backed away from Cano, afraid Cano would cut him again. He then
saw “blood . . . dripping all over the floor.” Mendoza saw the knife in Cano’s right hand

                                            4
as Cano got up after cutting Mendoza. It appeared to be the same knife Cano had
purchased when Mendoza had gone with him to the surplus store. Mendoza, however,
did not see the knife after that. He did not see it in Cano’s hand as he was walking away
and he did not see Cano put it in his pocket. Neither Mendoza nor his father was carrying
any kind of weapon that night.
       Cano, who had leaned over to cut Mendoza, stood up, turned around, walked over
to Mendoza’s father, who was still yelling, told him to “shut up” then hit him on the left
side of his face with a closed fist. Accompanied by Rick, who had been standing behind
Mendoza’s father, Cano walked away across the parking lot.
       After the commotion, a number of people came out of the church and gave
Mendoza paper towels to use to attempt to stop the bleeding from the cut on his face.
Police officers arrived and Mendoza told them Cano had cut him, then indicated Cano
had been wearing black jeans and a white shirt with Nike written on it. An ambulance
arrived and Mendoza was transported to the hospital where he received numerous stitches
to close the cut on his face. The laceration extended from his hairline to his lip.
       After the stitches came out, Mendoza had a scar on his face. In addition, at the
time of trial, he still experienced blurriness in his left eye.
       On the night of October 3, 2013, Culver City Police Department Patrol Officer
Ryan Thompson was working as a training officer. While he and his partner, Officer
Umutyan, were on patrol they received a call directing them to St. Augustine Church.
The call indicated an assault with a deadly weapon had occurred there. As the officers
approached the church, they looked for suspects. In particular, they looked for Cano.
Thompson, who had previously had contacts with Cano, drove the approximate mile to
the church with his lights and siren on. He, however, did not see Cano.
       When Thompson and Umutyan arrived at the church, a Culver City Police
Department sergeant, Van Hook, was already there. Thompson saw Louis Mendoza
seated in his wheelchair near some blood stains. There was also an “L.A. City Fire
Department [ambulance] . . . with Daniel Mendoza . . . in the back.” Thompson had
never before seen or known either of the Mendozas. Thompson took statements from

                                                5
two women, Andreani and McCarte, who had seen Cano hit Louis Mendoza, then spoke
with Louis, himself. Louis was “pretty distraught. He was concerned about his well
being and the well being of his son, who was . . . being transported by the ambulance.
[Louis] appeared scared.” In addition, Louis Mendoza’s right cheek was swollen
underneath his eye. Near Louis, Thompson saw what he considered to be stains from a
“substantial amount of blood.”
       After speaking with Louis Mendoza, Thompson and his partner went to the
hospital to see Daniel Mendoza. Mendoza was lying in a hospital bed and one of the
nurses pulled the gauze down to show the officers the wound on Mendoza’s face.
Thompson was able to see a laceration which started just above Mendoza’s left eye and
continued down his cheek to just above his mouth. When the officer spoke with
Mendoza at the hospital, he did not appear to be under the influence of alcohol or drugs.
Neither Daniel Mendoza, nor his father, Louis Mendoza, had been carrying any weapons
when the officers first saw them at the church. No weapons were found on Daniel
Mendoza at the hospital.
       Thompson and Umutyan then went back to the church and drove around the area.
They saw no one who matched Cano’s or Rick’s descriptions and, although they and
several other officers searched the church grounds, the parking lot, the planters, a
dumpster and all the trash receptacles, they found no weapons in the area.
       On the morning of October 4, 2013, Culver City Police Officer Christopher Ferrier
and his partner, Detective Brent Arnie, were in uniform and driving a marked car through
the streets of Culver City. At approximately 11:00 a.m., Ferrier saw Cano. Ferrier
recognized Cano because he had seen him on several prior occasions. Cano, who Ferrier
and Arnie were looking for because he allegedly had been involved in the assault which
had occurred at St. Augustine Church the night before, was walking north on Sepulveda
Boulevard. Ferrier pulled his patrol car into a lane closer to Cano, who was with
“another male Hispanic” named Orlando Ricky Garcia. Cano looked in the officers’
direction and said, “ ‘Hey, what’s up guys[?]’ ” Ferrier then turned his patrol car around
and pulled up next to Cano and Garcia. Both officers got out of their patrol car and

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approached Cano. Cano looked at the officers and said, “ ‘Oh, c’mon guys, you know
me. It’s Chris.’ ” However, “based on the fact that [Cano] was a named suspect from [a]
crime from the night before, [Ferrier] immediately placed him in handcuffs and made
sure he didn’t have any weapons.” Garcia, too, was handcuffed and detained.
       When Ferrier searched Cano, he found in Cano’s pocket his wallet, which
contained among other items a California identification card bearing the name Chris
Cano. In addition, the officer recovered a receipt from a “surplus store.” The receipt
indicated Cano had purchased a “Humvee knife.”
       Jaime Naylor is the general manager of the surplus store. Naylor identified the
receipt recovered from Cano’s wallet as being from his store. The receipt had been
printed on September 26, 2013 and showed Cano had purchased one “Humvee” folding
knife and one T-shirt.
              b. Defense evidence.
       Orlando Ricky Carrera had known Cano for approximately two years. He had
known Mendoza for approximately six months and was familiar with Mendoza’s father,
Louis Mendoza.
       On the evening of October 3, 2013, Carrera had been with Cano at a bar drinking
beer and watching a baseball game. After leaving the bar, Cano and Carrera were
walking to Cano’s house when they passed St. Augustine Church. There, they heard
“loud noise[] and screaming.” As it seemed the screaming was coming from the church
parking lot, Cano and Carrera went inside. However, as soon as they entered the lot, the
screaming stopped. There, Carrera observed Daniel Mendoza and Louis Mendoza as
well as a number of other individuals standing nearby. When Carrera approached Louis
Mendoza and asked him “what was going on,” Louis Mendoza, who appeared to be
intoxicated, “threw his arms up in the air and started screaming [and] yelling,” “ ‘Call the
police. Call the police.’ ” In the meantime, Cano was speaking with Daniel Mendoza,
asking him if he was “picking on his father again.” Carrera knew Mendoza and his father
frequently argued. He also, however, believed that their disagreements never went
beyond mere verbal fights.

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       At some point Carrera determined he wanted to leave. He told Cano he was “out
of [there],” turned around, lit a cigarette and started to walk away. Cano, too, decided he
wished to leave and he walked out of the parking lot with Carrera. As it was late and
they did not wish to wake up Cano’s mother, the two men decided to get a motel room
for the night. At no time that evening did Carrera see Cano hit anyone, see Cano with a
knife or see any blood.
       Carrera indicated he has been on permanent disability for approximately three
years and has no job. Although he testified he had been in Los Angeles for the previous
three years, he had at one time told a detective he had moved to Los Angeles from
Oklahoma within the prior six months. Most of Carrera’s time is spent taking care of his
mother. However, on October 3, he received his disability check and he decided to go to
a bar with Cano. Carrera did not give money to Cano as Cano was on general relief and
received money from both his mother and his girlfriend.
       Carrera does not smoke marijuana and, at no time that evening did he ask
Mendoza if Mendoza could get him some “pot” or “weed.” He and Cano entered the
church parking lot that night because they heard “[s]creaming [and] yelling” and decided
to “check out what was going on.”2 As the two men got closer to the group in the parking
lot, Carrera realized it was Mendoza and his father arguing. Because he has “respect for
elder people [and the] disabled,” Carrera approached Louis Mendoza and asked him what
was wrong. Louis would not tell Carrera and, instead, just threw up his arms and told
Carrera to “ ‘call the police.’ ”
       While Carrera was attempting to talk with Louis Mendoza, Cano approached
Daniel Mendoza. Cano was standing between the two men, as if he were protecting
Louis from Daniel. There was, however, no “scuffle” and Carrera never saw any
“physical[] fighting.” He did not see anyone cut in the face and he never saw Cano hit


2
       Carrera had earlier told a detective he suffers from hypertension and did not like to
be around “arguing and violence.” Carrera indicated that, when he and Cano heard the
yelling, he did not know anybody was arguing. He and Cano “were just curious” about
what was happening.

                                             8
Louis. As Louis would not tell him what was going on and no one appeared to be hurt or
injured, Carrera told Cano he wished to leave the parking lot. He did not want to become
involved in an argument. Cano, who had been screaming at Daniel, “nodded” at Carrera
and began to walk in Carrera’s direction. The two men then walked out of the parking lot
and in the direction of Cano’s apartment. However, on their way, Carrera decided it
would be better to get a motel room.
       2. Procedural history.
       Following a preliminary hearing, an information filed November 8, 2013 charged
defendant and appellant, Chris A. Cano, with one count of attempted second degree
robbery (§§ 664, 211) (count 1), and one count of assault with a deadly weapon, a knife
(§ 245, subd. (a)(1)) (count 2), during the commission of each of which he personally
inflicted great bodily injury upon Daniel Mendoza (§ 12022.7, subd. (a)). In addition, it
was alleged Cano committed misdemeanor battery (§ 242) (count 3).
       A jury trial began on March 12, 2014. Before the jurors were brought into the
courtroom, defense counsel made a motion pursuant to Evidence Code section 402 to
exclude evidence of a receipt for the purchase of a knife found in Cano’s wallet. The trial
court, however, allowed the evidence as the general manager of the store from which the
knife had been purchased had testified at trial. The manager authenticated the receipt and
verified it had been for a “Humvee” folding knife.
       During trial, it was brought to the court’s attention that one of the jurors had been
“texting” during a witness’s testimony. After questioning the juror, and reminding her
she had been instructed not to “text” during trial, the court determined, since she had only
sent and received two texts and appeared not to have missed any of the testimony, her
conduct would not affect her ability to deliberate in the matter and she would be allowed
to remain on the panel.
       After the prosecution presented its case, counsel for Cano made a motion to
dismiss the matter pursuant to section 1118.1. The trial court denied the motion,
indicating it believed there was substantial evidence in the record to support verdicts in



                                              9
the case. The trial court indicated the evidence was “reasonable” and would, “upon
review by an appellate court,” support a verdict of conviction.
       Following the presentation of evidence, instruction by the trial court and argument
by counsel, on the afternoon of March 18, 2014, the jury found Cano not guilty of the
crime of attempted second degree robbery in violation of sections 664 and 211, a felony
as charged in count 1 of the information. With regard to count 2, the charge of assault
with a deadly weapon, a knife, in violation of section 245, subdivision (a)(1), a felony,
the jury found Cano guilty. In addition, the jury found the allegation Cano personally
inflicted great bodily injury upon the victim in violation of section 12022.7, subdivision
(a) during the commission of the assault to be true. As to count 3, the misdemeanor of
battery in violation of section 242, the jury found Cano guilty.
       Sentencing proceedings were held on April 2, 2014. The trial court indicated it
had read the People’s sentencing memorandum and the references and letters presented
by Cano, then denied Cano probation. After noting the crime involved a “high degree of
cruelty and callousness,” that “the victim[, who was at the church with his wheelchair
bound parent had been] vulnerable,” that the “manner in which the crime was carried out
showed planning,” and that the crime was one of “increasing seriousness” with regard to
Cano’s criminal history, the trial court imposed the upper term of four years in prison for
his conviction of assault with a deadly weapon. As to the infliction of great bodily injury
during the assault, the trial court sentenced Cano to an additional three years in prison.
For his conviction of the misdemeanor battery, in part because it was committed against a
victim in a wheelchair, the trial court imposed a full consecutive term of six months, then
noted the six months could be served in any penal institution. In total, the trial court
sentenced Cano to a term of seven years six months.
       The trial court awarded Cano presentence custody credit for 180 days actually
served and 180 days of good time/work time, or 360 days. It then ordered him to pay a
$280 restitution fine (§ 1202.4, subd. (b)), a stayed $280 parole revocation restitution fine
(§ 1202.45), an $80 court operations assessment (§ 1465.8, subd. (a)(1)), and a $60
criminal conviction assessment (Gov. Code, § 70373).

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      Cano filed a timely notice of appeal on April 3, 2014.
                                       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. By notice filed August 22, 2014, the clerk of this court advised Cano 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




                                                       KITCHING, J.


      We concur:


                    KLEIN, P. J.




                    ALDRICH, J.




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