Filed 4/27/16 P. v. Aveno CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B266423

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA434378)
         v.

MARIO AVENO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Bernie C. La Forteza, Judge. Affirmed.


         California Appellate Project, Jonathan B. Steiner, Executive Director, Larry
Pizarro, Staff Attorney, under appointment by the Court of Appeal, for Defendant and
Appellant.


         No appearance for Plaintiff and Respondent.


                                  ________________________________
       A jury found appellant Mario Aveno guilty of two counts of assault with a deadly
weapon (Pen. Code,1 § 245, subd. (a)(1)) involving two victims, with a finding as to each
count that Aveno personally inflicted great bodily injury (GBI) on the respective victim
(§ 12022.7, subd. (a)). The trial court sentenced Aveno to a total aggregate term of nine
years in state prison consisting of the upper term of four years on count 1, plus a three-
year term for the GBI finding, and a one-year term on count 2 (one-third the midterm),
plus a one-year term for the GBI finding (one-third the midterm). Appointed counsel on
appeal filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Aveno filed a letter brief asserting various claims of error. We affirm the judgment.
                                          FACTS
The Crimes
       During the early morning hours on March 6, 2015, Kalpesh Patel and Amit Patel
left a local bar, and were walking on Hollywood Boulevard, trying to call for an Uber
driver, when Aveno attacked them with a hammer. Both Patels suffered serious head
injuries.
The Prosecution
       In April 2015, the People filed an information charging Aveno with two counts of
assault with a deadly weapon upon Kalpesh Patel and Amit Patel, each with an allegation
as to that Aveno personally inflicted GBI on the respective victim. The charges were
tried to a jury in July 2015, at which time Kalpesh, Amit and a number of police
witnesses testified for the prosecution. The evidence established the facts summarized
above. Aveno was represented by a public defender, and testified in his own defense.
Aveno explained that, at the time of the incident, he “perceived” that “there’s always
people attacking homeless people in Hollywood.” Further, that the Patels appeared to be
drunk and were acting aggressive as they walked toward him, and that they hit him first.
Aveno testified he had been afraid that the Patels were going to try to take a guitar that he



1
       All further undesignated section references are to the Penal Code.

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was carrying that night. After the Patels hit him first, Aveno took out a hammer and
defended himself.
       The case was submitted to the jury with trial court instructions on assault with a
deadly weapon, and the lesser offense of misdemeanor simple assault. Further, the court
instructed on a person’s right to self-defense when the person reasonably believes that he
or she is in imminent danger of suffering bodily injury. On July 23, 2015, the jury
returned verdicts as noted above. The court thereafter sentenced Aveno as noted.
       Aveno filed a timely notice of appeal.
                                      DISCUSSION
       We appointed counsel to represent Aveno on appeal. Appointed counsel filed an
opening brief pursuant to Wende, supra, 25 Cal.3d 436, requesting independent review of
the record on appeal for arguable issues. We then notified Aveno by letter that he could
submit any claim, argument or issues that he wished our court to review. Aveno filed a
letter brief which we discuss next.
I.     Photographs
       Aveno first contends his convictions must be reversed because the trial court
erred in ruling that the prosecution could use “31 gory photographs” during the testimony
of various prosecution witnesses. Aveno concedes that a photograph of a victim’s
injuries “may [be] highly probative” to prove “several issues” in a GBI case, but argues
that the use of so many photographs in his case was “highly inflammatory” and may have
caused “undue prejudice in the minds of the jurors” in that they were “unduly exposed
to . . . 31 highly objectionable and controversial gory photographs.” Aveno argues that,
“certainly, there was another way to prove the necessary facts of Kalpesh’s and Amit’s
injuries,” such as their medical records. He argues that the use of the “31 prejudicial,
gory photographs” may have caused jurors to vote guilty “in spite of credible offered
evidence favoring ‘not guilty,’” thus denying him of his constitutional right to a trial by
an impartial jury. Aveno has offered impassioned arguments, but we are not persuaded to
find any arguable issue.



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       Aveno’s argument is in the nature of an objection pursuant to Evidence Code
section 352, which provides that relevant evidence may be excluded if its probative value
is substantially outweighed by the probability that its admission will necessitate undue
consumption of time, confuse the issues, or mislead the jury. (Evid. Code, § 352; People
v. Callahan (1999) 74 Cal.App.4th 356, 366-367.) Evidence is unduly prejudicial only if
it “‘“‘uniquely tends to evoke an emotional bias against the defendant as an individual
and which has very little effect on issues.’”’ [Citations.]” (People v. Barnett (1998)
17 Cal.4th 1044, 1118-1119.) We review the trial court's admission of evidence of abuse
of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.) In other words, a trial court’s
decision to admit certain evidence will not be disturbed on appeal absent a showing that it
exercised its discretion in an arbitrary manner resulting in a manifest miscarriage of
justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
       We have reviewed the trial exhibits and find no abuse of discretion. As a
preliminary matter, we note that Aveno is wrong that the prosecution used “31 gory
photographs” of the victims’ injuries at his trial. The prosecutor used a total of 21 photo
exhibits at trial. Of those exhibits, a number were used to show the locations where the
events of March 6, 2015 occurred, for example, photos of street locations and buildings.
None of these photos is gory in any way. Further, the prosecutor used one current photo
of Amit and two current photos of Kalpesh (Exhibits 5, 16, 17) to show their permanent
scars. That is, to show the lasting effects of the hammer blows inflicted by Aveno.
None of these photos is gory in any way, or subject to exclusion on the ground of undue
prejudice. Further, Aveno did not object to the use of any of these three photo exhibits,
and, thus, any objection is forfeited on appeal. (People v. Anderson (2001) 25 Cal.4th
543, 586 (Anderson).)
       This leaves a total of nine photos having any relevance to Aveno’s claim of error
on appeal. Two of these nine, Exhibits 6 and 7, show blood splatters on the sidewalk at
the scene of the attack. Aveno objected to Exhibit 6 only. He has thus forfeited any
objection to the use of Exhibit 7. (Anderson, supra, 25 Cal.4th 543.) As to Exhibit 6,
the trial court overruled Aveno’s objection, finding the probative value of exhibit was

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probative of the GBI elements of Aveno’s case, and that it was not unduly prejudicial.
We agree. Exhibit 6 is highly probative on the GBI elements of Aveno’s case, is not
particularly gory, and does not strike us as inflammatory in any measure.
       The seven remaining photo exhibits relevant to Aveno’s claim of error (Exhibits 1,
2, 4, 8, 9, 10, 15) are photos taken shortly after the hammer attack, and show the injuries
to Kalpesh’s and Amit’s heads, generally in the nature of photos taken during their
medical treatment. Although these photos reasonably could be viewed as having the
potential for invoking a visceral effect on an observer, it appears from our review of the
trial record that Aveno objected only to one of the exhibits, Exhibit 8. As to Exhibit 8,
we find no error on the trial court ruling that the probative value of the exhibit
outweighed its potential for prejudice.
       Finally, we have reviewed all of the photo exhibits collectively, and find that the
use of the multiple photos was not so overwhelming so as to create a potential revulsion
in the minds of the jurors, causing them to convict Aveno without regard to the evidence.
The use of the photos did not render Aveno’s trial unfair.
II.    Prosecutorial Misconduct
       Aveno next contends his convictions must be reversed because the prosecutor
twice asked for sidebar conferences to discuss offering a prior conviction to impeach
Aveno during his testimony, and then “acted as though the requests were granted,”
notwithstanding the court’s rulings that the evidence would not be allowed. Further,
Aveno argues that several comments during the prosecutor’s closing arguments crossed
the line into the realm of prosecutorial misconduct. We see no basis for finding an
arguable issue.
       A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it infects the trial with such unfairness as to make the conviction
a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643.)
Misconduct by a prosecutor that does not render a trial fundamentally unfair is error
under state law only if the prosecutor uses “deceptive or reprehensible methods” to
attempt to persuade the court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)

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       Aveno offers no authority for the proposition that asking for a sidebar conference
constitutes prosecutorial misconduct, and the record does not support his accusation that
the prosecutor ignored a particular evidentiary ruling.
       Aveno also claims that certain of the prosecutor’s questions during his cross-
examination of Aveno were improper. We have reviewed the referenced line of
questions, and find no error. What we see are questions designed to point out the
inconsistencies in Aveno’s testimony on direct examination. Such questioning is the very
purpose of cross-examination, and does not constitute prosecutorial misconduct. Further,
we see no objections to the questions to which Aveno now assigns error on appeal, and,
thus, any claim of error is forfeited.
       Aveno takes issue with certain comments during the prosecutor’s closing
arguments, asserting they were improper. We have reviewed the referenced aspects of
the prosecutor’s arguments, and find no error. The prosecutor highlighted the evidence
showing Aveno’s guilt, and challenged the believability of Aveno’s testimony that he
acted in a perceived need for self-defense. These themes were proper subjects for
argument to a jury. To the extent the prosecutor argued that Aveno was “either lying
through his teeth, or he’s not lying, but he’s got some issues with perception,” we are not
persuaded that the prosecutor went too far with his argument. A prosecutor properly may
argue that a defendant lied in his or her testimony, so long as the prosecutor argues
inferences based on the evidence, and does not offer a personal opinion on the
defendant’s credibility or suggest that there is evidence outside the record which shows
that the defendant lied. (See, e.g., People v. Edelbacher (1989) 47 Cal.3d 983, 1030.)
Further, Aveno did not object and request a curative admonition, and, thus, has forfeited
his claim of prosecutorial misconduct on appeal. (See, e.g., People v. Hinton (2006)
37 Cal.4th 839, 863.)
       Aveno’s arguments about certain statements included within the prosecutor’s
sentencing memorandum do not support his prosecutorial misconduct arguments for
reversal of the jury’s verdicts in that any such statements could not possibly have affected
the jury’s decision-making process.

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III.   Instructional Error
       Aveno contends that his convictions must be reversed because the trial court’s
instructions on self-defense were erroneous. We are not persuaded.
       Here, all of Aveno’s arguments seem to be based on the proposition that we
should reweigh the evidence and find that the Patels were the aggressors, and that
consequently, he had the lawful right to defend himself. In summary, he argues he acted
in a reasonable belief of the need to use self-defense. Such evidence-weighing arguments
to not support a conclusion that the jury instructions contained some error. Further, it
was the jury’s task to decide the dispute whether the Patels acted first, triggering Aveno’s
perceived need for self-defense, or whether Aveno wielded his hammer without any
provocation. The jury’s decision to reject Aveno’s version of the events does not show
that the jury instructions were defective.
IV.    Stand Your Ground Defense
       Last, Aveno argues that his convictions must be reversed because the trial court’s
instructions failed to explain to the jury that he was “entitled to stand his ground” against
the “unreasonably coercive Amit Patel.” We disagree. Here, Aveno’s arguments simply
are not cogent enough to persuade us that an error occurred. Further, it appears that
Aveno’s “stand your ground” arguments are largely a variation on his self-defense
arguments that we addressed in the previous section of this opinion. We reiterate: it was
the jury’s task whether to believe Aveno’s defense that he acted in a perceived need for
self-defense. The jury’s decision to reject Aveno’s version of events does not show that
the jury instructions were defective.
V.     Summation
       We have independently reviewed the record on appeal, and find that appointed
counsel has fulfilled his duty, and that no arguable issues exist. (Wende, supra, 25 Cal.3d
436, People v. Kelly (2006) 40 Cal.4th 106.)




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                                 DISPOSITION
     The judgment is affirmed.


                                               BIGELOW, P. J.
We concur:




             RUBIN, J.




             FLIER, J.




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