Filed 8/25/15 P. v. Warren CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068291
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR044135)
                   v.

JOHNATHAN HOWARD WARREN,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
         Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-



*        Before Detjen, Acting P.J., Franson, J. and Smith, J.
       A jury convicted Johnathan Howard Warren of involuntary manslaughter, assault
by means of force likely to cause great bodily injury, and battery resulting in serious
bodily injury. The jury also found true the allegation that the victim, Paul Carranza, was
comatose before he died. The charges arose out of an incident wherein Warren
confronted Carranza over a $10 debt. Warren approached Carranza from behind and
tapped him on the shoulder. When Carranza turned around, Warren hit Carranza in the
face with a single blow. An intoxicated Carranza fell backwards, striking his head on the
pavement. The fall resulted in a traumatic brain injury that led to Carranza’s death. The
charges and jury verdict reflected the absence of evidence that Warren intended to
murder Carranza.
       Warren argues on appeal that the trial court erroneously failed to exclude evidence
of his prior conviction for misdemeanor criminal threats. While we do not find any error,
we affirm the judgment because, even if there was error, Warren cannot establish
prejudice.
                      FACTUAL AND PROCEDURAL SUMMARY
       The information charged Warren with (1) involuntary manslaughter (Pen. Code
§ 192, subd. (b)),1 (2) assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4)), and (3) battery resulting in serious bodily injury (§ 243, subd. (d)).
Count II included an enhancement alleging Carranza was comatose as a result of the
assault within the meaning of section 12022.7, subdivision (b).
       The following testimony is limited to the day of the incident that led to Carranza’s
death and is presented in rough chronological order.




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


                                               2.
       Theodore Hernandez had been in the local park for most of the afternoon. Also
present was Warren, whom Hernandez had known for over a year. Warren and
Hernandez got into a fistfight over something inconsequential. Hernandez got the worst
of the fight, ending up with a black eye. Hernandez and Warren continued to drink beer
together after the fight.
       Carranza and Hernandez’s girlfriend, Jolene Hudson, arrived at the park after the
fight. Thereafter, Carranza, Hernandez, and Hudson, along with another individual, left
the park to go to Carranza’s apartment. Since Hernandez and Hudson were homeless, as
was the third person, they were all going to spend the night at Carranza’s apartment.
While they were watching movies, Carranza decided he wanted to buy more beer.
Hernandez gave Carranza some money, and Carranza left the apartment.
       John Burleigh lived in the apartment adjacent to Carranza. Around 10:00 p.m. he
heard Carranza and Warren yelling at each other. Carranza was in his apartment, while
Warren was behind the apartment building. It appeared Warren wanted to come into the
apartment, but Carranza would not let him in.
       Luther Sykes was on the side of a local liquor store drinking a beer when Carranza
walked by. Carranza, who had bought beer at the liquor store, stopped and asked Sykes
if he wanted to have a beer with him at the park. The two were talking when a third man
approached. Sykes was facing the man; Carranza had his back to the man. The man,
who Sykes could not identify, tapped Carranza on the shoulder. When Carranza turned
around, the man said, “Do you remember me?” and then struck Carranza in the face with
his fist. Carranza fell down and his head struck the concrete sidewalk. The man walked
back to the front of the liquor store, got into a vehicle, and drove away. 2




       2Security   video from the liquor store helped identify Warren as the man who hit
Carranza.


                                              3.
       Madera Police Detective Josh Chavez testified to the statements made by Warren
after his arrest. After being advised of his constitutional rights pursuant to Miranda v.
Arizona (1966) 384 U.S. 436, Warren admitted he was in the park the day of the incident
and had had a fight with Hernandez. He also admitted he went to Carranza’s apartment
later that night to speak with Hernandez but was told Hernandez was not available.
Furthermore, Warren admitted he punched Carranza at the liquor store. Warren
explained that while at the park earlier that day he had given Carranza $10 to buy
methamphetamine. Carranza left, ostensibly to buy the methamphetamine, but did not
return. Later that night as Warren was driving around town, he saw Carranza talking
with Sykes. Warren parked his vehicle with the intent of obtaining “street justice.” He
went up to Carranza and hit him in the face for stealing his money. Warren then returned
to his vehicle and left.
       Dr. Mark Levy was working as a neurosurgeon at the hospital to which Carranza
was transported. Carranza had a severe head injury that resulted in massive brain
swelling. Medication was given and surgical intervention was performed to address
Carranza’s injuries, but those proved unsuccessful. Ultimately, Carranza’s brain
increased in size to such an extent that it died. The cause of the injury was an impact to
the head. When Carranza initially arrived at the hospital, he was not in a coma.
However, his condition quickly deteriorated, which caused Carranza to become
comatose.
       Dr. Jerry Nelson performed the autopsy on Carranza. He concluded the cause of
death was a traumatic injury to the brain that occurred when Carranza fell and hit his
head on the sidewalk. The rebound injury, or contrecoup injury, to the brain caused
massive swelling that eventually shut down the blood flow to the brain, as well as
damaged the brain stem.
       Warren testified in his defense. He admitted he had had an altercation with
Hernandez at the park earlier in the day. He also admitted he went by Carranza’s

                                             4.
apartment, but stated he thought it was Hernandez’s apartment. Warren testified he was
looking for Hernandez but left when he learned Hernandez was not available. He then
drove to the liquor store to buy some liquor and drug paraphernalia. After he parked he
saw Carranza and Sykes drinking beer.3 Warren decided to approach Carranza because
Carranza had been hit in the head at the park earlier in the day and because he wanted his
$10 back. Warren claimed he walked up to Carranza and said, “Remember me?” Sykes
ran away when he saw Warren. Warren admitted he may have been “too close” to
Carranza, and Carranza grabbed him by the coat when he turned around. Warren reacted
by striking Carranza in the face with his elbow in self-defense. Carranza stumbled
backwards but did not fall down immediately, eventually falling to the ground when his
knee gave out.
       The jury found Warren guilty as charged, and also found the enhancement true.
The trial court sentenced Warren to the aggravated term of four years on the count
charging Warren with assault with force likely to produce great bodily injury and then
added five years for the coma enhancement, for a total term of nine years. The sentences
on the remaining counts were imposed and stayed pursuant to section 654.
                                      DISCUSSION
       Warren presents two arguments, both based on the same facts. Prior to trial, the
trial court ruled that if Warren testified, he could be impeached with a 2010 conviction
for making criminal threats (§ 422), which the court found to be a crime of moral
turpitude. When Warren was called to the stand, defense counsel immediately asked him
if he had a prior conviction for making criminal threats in 2010. Warren admitted the
conviction. The prosecutor began her cross-examination by exploring the same topic.

       “Q     First of all with regard to your threats conviction from 2010, that’s a
              threat to kill somebody or harm them seriously, right?

       3Warren claimed he did not know Carranza’s name, but he admitted recognizing
Carranza from the park.


                                             5.
“A   Actually it was a misdemeanor and I was told it was basically like—
     there’s a school right next to me, kiddie college. They said it [was]
     kind of like disturbing the peace, that’s my impression when I signed
     the plea deal.

“Q   You don’t remember what it—it was terrorist threats, threatening to
     kill somebody?

     “[DEFENSE COUNSEL]: Objection.

     “THE COURT:          Overruled.

     “THE WITNESS:        Yes, I wasn’t informed at the time.

     “[DEFENSE COUNSEL]: May we approach?

     “THE WITNESS:        I [was] just told it was a misdemeanor.

     “[DEFENSE COUNSEL]: Your Honor, I believe it misstates the
     evidence. I believe it misstates the terrorist threats.

     “THE COURT:          It’s been reclaimed. [¶]

“Q   It was criminal threats?

“A   Yeah. I told somebody I was going to get my rifle, yeah.

“Q   So you told somebody you were going to get a gun and harm them?

“A   Yeah, my son and it—he was tweaking on dope, stealing from me so
     it wasn’t intended, it was just—I said it. And like I said, there was a
     college right next door so they called the police.

“Q   Your son was afraid?

“A   No, he wasn’t afraid. I say that all the time.

“Q   So you threaten people all the time?

“A   No, just him.

“Q   You threaten your son all the time?

“A   It’s not an intense—that kind of a manner but, yeah, he has got a
     serious drug problem.”



                                    6.
       Two things are clear from this passage. First, most of the testimony about which
Warren complains occurred because Warren did not limit his answer to the question
asked by the prosecutor, but instead volunteered information that was not responsive to
the question. Second, Warren was attempting to explain that he was not going to kill his
son, but merely threatening him because of his son’s behavior, which was related to his
son’s drug problem.
       At the next break, defense counsel moved for a mistrial, asserting the facts of the
underlying crime were prejudicial character evidence. Defense counsel did not ask the
trial court to strike the testimony. The trial court denied the motion for mistrial.
       In this appeal, Warren first argues the underlying facts of the crime were utilized
by the prosecution as impermissible character evidence and therefore should have been
excluded as more prejudicial than probative. Warren, however, did not seek to prevent
introduction of the facts of the underlying crimes pursuant to Evidence Code section 352.
Nor did defense counsel cite this section when objecting to Warren’s testimony. More
importantly, the prosecutor’s questions did not seek to elicit the facts of the underlying
crime; those facts were volunteered by Warren.
       Warren’s second argument is that the trial court erred in denying his motion for a
mistrial. Since Warren essentially volunteered the evidence, there were no grounds for a
mistrial. Accordingly, the trial court did not err in denying defense counsel’s motion.
       We need not rely on defense counsel’s failure to object, or Warren’s failure to
limit his answers to the prosecution’s questions, to affirm the judgment. Even if we were
to assume the trial court erred, Warren cannot establish any prejudice. An error in the
admission of evidence is reversible only if the error has resulted in a miscarriage of
justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353.) A miscarriage of justice occurs
when, after an examination of the entire cause, including the evidence, it is reasonably
probable that a result more favorable to the defendant would have been obtained had the



                                              7.
identified testimony been excluded.4 (People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, the alleged error did not adversely affect the outcome of the trial. Hence, there was
not a miscarriage of justice.
        We begin our analysis with Warren’s testimony. He claimed he was driving down
the street when he observed Carranza talking to Sykes outside the liquor store. He
stopped his vehicle because he was concerned about Carranza’s health. Earlier in the day
Warren had testified that while he was in the park he had observed Carranza get hit in the
head by a golf club, an event no one else observed even though Carranza was well known
in the park. Moreover, Warren’s testimony strongly suggested Carranza was not injured
by this alleged incident since Warren saw Carranza in the park later that day and
observed Carranza depart with Hernandez and Hudson. One would expect that if Warren
had been concerned about Carranza’s health, an inquiry would have been made at that
time.
        Warren next testified that he approached Carranza from behind to get his attention.
In an attempt to explain his claim of self-defense, Warren testified that perhaps he got a
little too close to Carranza before he tapped Carranza on the shoulder to get his attention.
Carranza was apparently startled by Warren’s action because when Carranza turned
around he grabbed the front of Warren’s jacket. Warren then reacted by striking
Carranza in the face with his elbow. Carranza then staggered about for a while before
falling to the ground.



        4Warren  attempts to cast his argument as one affecting his rights under the due
process clause of the United States Constitution, thus implicating the Chapman v.
California (1967) 386 U.S. 18, 24 test for reversal. Under this case, when a federal
constitutional error has occurred, we cannot affirm the judgment unless we conclude the
error was harmless beyond a reasonable doubt. While we fail to see any error, let alone
an error that resulted in a violation of Warren’s constitutional right to due process, if such
an error occurred, we would also conclude the error was harmless under the Chapman
standard.


                                              8.
       This sequence of events is contradicted by virtually every other piece of evidence.
If Warren had thought Carranza might be injured, he would not have snuck up on
Carranza and put himself in a position to startle Carranza or reacted violently when
Carranza grabbed his jacket. Similarly, if Warren had been concerned about Carranza’s
health, one would expect Warren to have inquired about Carranza’s health.
       The video, according to the prosecutor’s closing argument, which was not refuted
by defense counsel, showed Warren arriving in his vehicle and then exiting the vehicle in
an intentional and determined manner. The actual confrontation was not recorded
because of the position of the camera. However, approximately 30 seconds later Warren
again was observed running to his vehicle and driving off. Warren’s demeanor and the
short amount of time Warren was outside the view of the camera strongly suggest he had
a specific purpose in mind when he approached Carranza, and he quickly accomplished
that purpose.
       Also inconsistent with Warren’s testimony was the injury suffered by Carranza.
Warren testified Carranza stumbled around for a moment before he fell. However, the
extent of the injury sustained by Carranza strongly suggested Carranza had no time to
react to protect himself when he fell.
       The actual reason for the confrontation between Warren and Carranza can be
found in Warren’s statement to Chavez. Warren told Chavez the reason he stopped was
because he had given Carranza $10 to buy methamphetamine, and Carranza had
disappeared with his money. Warren explained he was merely seeking street justice,
which is exactly what Warren did. This explanation is consistent with both the liquor
store video and Carranza’s injuries. Moreover, the independent evidence was consistent
with Warren’s confession and inconsistent with Warren’s testimony. This evidence alone
was overwhelming proof of Warren’s guilt.
       Sykes’s eyewitness testimony provided additional proof that Warren fabricated his
testimony. Sykes explained that Warren walked up to Carranza, tapped Carranza on the

                                            9.
shoulder, “pulled his arm back,” and hit Carranza in the face. Carranza then fell
backwards and struck his head on the cement. Warren then left the liquor store, as was
seen in the video. Sykes’s testimony was consistent with the injuries suffered by
Carranza.
       We also note the testimony about which Warren complains was not nearly as
prejudicial as he asserts. Warren explained that he confronted his son because his son
had been stealing from him to support his methamphetamine habit. Warren threatened to
shoot his son, but his son was not afraid and Warren never was going to shoot him.
While this testimony may have been an example of Warren’s lack of parenting skills, it
was not so shocking that it would cause a jury to immediately disbelieve Warren’s
testimony or disregard all evidence supporting his claim of self-defense. Instead, it was
the inherent improbability of Warren’s testimony that caused the jury to reject it.
       The evidence of Warren’s guilt was conclusively established not only by Warren’s
confession but also by Sykes’s testimony, the liquor store video, and the results of the
autopsy. Accordingly, any possible error that occurred at trial was harmless beyond any
possible doubt.
                                     DISPOSITION
       The judgment is affirmed.




                                            10.
