Filed 8/26/20 P. v. Gomez CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE,                                                    B300848

         Plaintiff and Respondent,                             (Los Angeles County
                                                               Super. Ct. No. BA474043)
         v.

EDUARDO GOMEZ,

         Defendant and Appellant.




      APPEAL from an order of the Superior Court of
Los Angeles County. Douglas Sortino, Judge. Affirmed as
modified.

     Panahpour Law and Nilou Panahpour for Defendant and
Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Steven D.
Matthews and Michael J. Wise, Deputy Attorneys General, for
Plaintiff and Respondent.
       Defendant and appellant Eduardo Gomez (defendant)
appeals from the judgment entered upon his conviction of
aggravated assault and battery. He contends that the trial court
erred in admitting third party efforts to suppress evidence
without a limiting instruction, and in denying his motion for
mistrial. Defendant also asks that the four one-year
enhancements imposed under former Penal Code section 667.5 be
stricken.1 We strike the enhancements, but find defendant’s
remaining contentions to be without merit, and otherwise affirm
the judgment.
                          BACKGROUND
       Defendant was charged with battery causing serious bodily
injury in violation of section 243, subdivision (d) in count 1. He
also was charged with assault by means of force likely to produce
great bodily injury in violation of section 245, subdivision (a)(4) in
count 2. The information also alleged that defendant personally
inflicted great bodily injury on another within the meaning of
sections 667 and 1192.7, and had suffered two prior serious or
violent felony convictions within the meaning of section 667,
subdivision (a)(1), as well as within the meaning of 667,
subdivisions (b) through (j), and section 1170.12, subdivision (b)
(the Three Strikes law).2 Finally, it was alleged that defendant



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

2     At sentencing, the prosecution conceded that one of the two
alleged prior serious or violent felony convictions was not a
strike.




                                  2
served six prior prison terms within the meaning of former
section 667.5, subdivision (b).
       A jury found defendant guilty of both counts as charged
and the great bodily injury allegation to be true. After a court
trial on the prior convictions, the court found five of them to be
true, pursuant to section 667.5, subdivision (b), and that two of
the convictions merged into one single prison prior because the
terms served were concurrent. Thus, the prior prison-term
convictions were as follows: two convictions of willful harm or
injury to a child, in violation of section 273a, one conviction of
carrying a concealed dirk or dagger, in violation of section 21310,
and one conviction of assault by a prison inmate by means of
force likely to produce great bodily injury, in violation of section
4501, subdivision (b). The court further found that defendant’s
1993 conviction of assault with a firearm to be a serious felony
within the meaning of section 667, subdivision (a)(1).
       The trial court sentenced defendant to a total term of 20
years in prison, comprised of the high term of four years as to
count 2, doubled as a second strike, plus a five-year recidivist
enhancement and three years due to the great bodily injury
finding. The trial court also imposed a consecutive one-year term
for each of the four prior prison terms. For count 1, the court
imposed the high term of eight years, which the court stayed
pursuant to section 654. Presentence custody credit of 250 days
was awarded and defendant was ordered to pay assessments
totaling $440.
       Defendant filed a timely notice of appeal from the
judgment.




                                 3
Prosecution evidence
       Edgar Oliva (Oliva) testified that in 2018, he lived near the
intersection of Neil Armstrong Street and Rainbow Terrace Lane,
Montebello. Around 11:00 p.m. on October 27, 2018, he was on
the front balcony of his home when he heard the sound of people
arguing. He saw a group of four to six men and women, about
200 or 300 feet away. One of the men was hitting a woman.
When he saw the woman fall to the ground, Oliva called 911 and
described what he saw: that the group was in the middle of the
street, all were wearing black, and the man was “punching and
punching and punching” until the victim passed out. He thought
the assailant had a shaved head and the women had tattoos. A
recording of that 911 call was played for the jury. At trial, Oliva
described the assailant as a little heavy and bald, but he could
not describe any of the others. He added that after about two
minutes, the assailant and his group walked away toward Arroyo
Drive, leaving the woman lying on the ground. A man drove up
in a truck and stopped traffic to protect her. Oliva was not
acquainted with the victim or defendant, and he was unable to
identify anyone in the courtroom as someone he saw that night.
       Martha Santa Anna (Santa Anna) testified that she was
the victim of that beating and that she did not live in Montebello,
but had gone there to attend a funeral and reception. Santa
Anna was then 57 years old and had known the deceased,
Ernestine Parra, since she was 16 years old. They both had
grown up in the East Los Angeles neighborhood known as
Marianna Maravilla gang territory. Some of the people at the
reception were members of the gang, including Santa Anna.
Although Santa Anna still considered herself a member, she did
not associate with the gang since before she had her first child, in




                                 4
1979. Then her children became her priority. She stopped
working in 2014, after she became disabled with a bad heart, a
bad back, and arthritis. Her contact with members of the gang
consisted mostly of participating in car wash events to raise
money for the families of deceased members and to attend
barbeques for them. The last such event before the celebration of
Parra’s life was a barbeque in the park about a month before
Parra died.
      Santa Anna was acquainted with defendant, who was also
a member of the Marianna Maravilla gang, though she did not
know him well. She knew him only as “Moreno.” Santa Anna
recounted an incident involving defendant that had taken place
about four years before the night she was beaten. She testified
that her son and his friends told her that they had been
approached and treated with hostility at the park. In an effort to
hear the other side of the story, she stopped at a friend’s home
and defendant happened to be there. Defendant was acting
erratically, jumping behind her back while she was talking to her
friend. It made her nervous and she asked him to stop.
Defendant reacted by cursing her, calling her names, and
eventually hitting her. She hit him back. Santa Anna then told
her boyfriend what happened. The boyfriend, a believer that men
should not hit women, then went to the friend’s house and
engaged in a fistfight with defendant. Since that time, whenever
Santa Anna and defendant crossed paths, they usually ignored
each other.
      Santa Anna arrived at the celebration of life reception at
about 3:30 p.m. on October 27, 2018, with her cousin. Many of
the people attending the funeral services wore black T-shirts with
Parra’s image on the front, and some wore them at the reception.




                                5
Some people brought food or alcohol, including Santa Anna who
brought a half pint bottle of Hennessey cognac, ice, and a six pack
of Modelo beer for her cousin. Santa Anna had one of the beers,
and her cousin had one shot of the cognac, and then Santa Anna
sipped the rest of her cognac over the course of the afternoon and
evening, until about 9:00 p.m. She denied becoming intoxicated.
       Though Santa Anna saw defendant at the party, she did
not say anything to him. He was with a small group that
included Camacho, an unknown man, Veronica Villarreal, and
her daughter, Celia Villarreal.3 Defendant’s group left the party
around 9:00 p.m. When Veronica and Celia approached Santa
Anna to say goodbye, Santa Anna saw that Celia appeared to be
very drunk. Santa Anna told her to be careful.
       Before the group left, Santa Anna observed “Sleepy” (a
member of Marianna Maravilla), Stephen Ortiz, and another
man in a heated discussion. Santa Ana did not know what they
discussed, but it seemed to her that negative energy was directed
toward Ortiz, who was part of Santa Anna’s extended family.
She approached the group and said to Ortiz, “Come on. Don’t get
involved. Just be cool. Come sit over here with me.” Then she
returned to where she had been sitting, and defendant’s group
left. Sleepy approached Santa Anna and told her to mind her
own business, to let the guys handle the guys and the girls
handle the girls. She replied, “Check your history. That’s exactly
what I said about four years ago,” referring to a time before she
met defendant, when men were hitting women because they were
drinking a few beers together, telling them, “Girls stay with girls.

3     As Veronica and Celia Villarreal share the same surname,
we refer to them by their first names to avoid confusion.
Veronica was also sometimes known as Veronica Delgado.




                                 6
Guys stay with guys.” When Sleepy continued to talk, she said,
“You know what? I don’t want to talk about it anymore. Just
check your history.”
       About two hours after defendant’s group left, Santa Anna
prepared to leave. As she was taking her ice chest to the car, she
passed Sleepy, who was on the phone. As she passed, he hung up
and said, “He’s on his way.” She shrugged, not knowing what he
was talking about. As she opened the back hatch of her car and
leaned into the trunk to put things away, she heard a tire
screech, looked up, and saw two cars facing each other (“with
their tips pointed together”), blocking the street at Neil
Armstrong Street and Rainbow Terrace. One was a burgundy
Nissan and the other was a silver Nissan. Santa Anna testified
that she had previously seen defendant and his wife in a
burgundy Nissan at various events.
       After Santa Anna turned back toward the trunk of her car,
she heard the sound of a fist punching an open palm. She turned
and saw defendant about 15 feet away. He said, “Keep my name
out of your mouth.” He then rushed up and started beating her.
He “clocked” her and kept punching her. She passed out and
went in and out of consciousness. She recalled being on the
ground and felt some kicks. She saw shoes about six inches from
her face, and then passed out again.4 Santa Anna identified a
photograph of defendant as he looked that night. She testified
that she recalled him not having hair then. He was wearing a


4     Santa Anna testified that the shoes she saw were “Doc
Martin’s,” but she could not be sure they belonged to her
attacker. Defense counsel showed her a photograph taken at the
funeral home that day which showed defendant wearing
sneakers.




                                7
black beanie. Defendant was not wearing the beanie at the
party, but was wearing it when he attacked her.
       Defendant punched and kicked Santa Anna so many times
that she had bruises all over her body. Her face was “pretty
much ripped apart,” with broken bones and black eyes. Her neck
was purple from bruising. At the time of trial her back still had
bruises and scars. Facial bones were broken, her ribs were sore,
and her hip was broken. She spent a week in the hospital,
suffered great pain, was in a wheelchair for about three months,
and used a walker for another two months. At the time of trial,
she still had difficulty walking and used a cane.
       Santa Anna testified that she now stays away from old
friends, including Camacho, out of fear that her life is in danger.
She explained, “There’s been threats made. I’ve been cussed at.
Messages have been channeled through the line to watch out.”
When asked about the origin of the threats, Santa Anna
explained, “I know where. I can’t say specifically, but they have
come from one particular person. I’m not saying it was her that
directed it. I’m just saying she’s the one who voiced.” Santa
Anna testified that the person was Veronica, whose photographs
Santa Anna identified. In three defense exhibits, Veronica was
photographed with defendant standing next to or in front of her.
       A three-page printed conversation stream from Santa
Anna’s Facebook page was admitted into evidence.5 A
photograph of Santa Anna and Parra appears on all three pages
of the exhibit. It depicts them holding a street sign with the
name Maravilla, taken at a barbeque they attended prior to

5     See Discussion, infra. The parties have not had the
exhibits transmitted to this court. (See Cal. Rules of Court, rule
8.224.)




                                 8
Parra’s death. Veronica posted the following comment on the
page: “You don’t deserve to hold that sign in your hands you F-K-
N rata.” Santa Anna replied, “You’re a fucken disgrace bitch.
You and your fake ass.” Veronica then posted: “I’m a disgrace???
Ha Ha. Ha. You fuckin’ rat bitch. I don’t go on stands and tell on
people. I don’t call juras on people or give information on anyone.
Lien [sic] ass snitch bitch.” Santa Anna replied, “Sure act brave
on Facebook. It shows how fake you are.” Veronica countered,
“Go act brave on a stand. Shows how brave you are. I’ll tell you
this shit to your face. I’m putting this on Facebook so everybody
can know you’re a rata.” In an attempt to end the conversation,
Santa Anna wrote, “Applause for you.” Then, directing her
comments to “Linda,” Veronica wrote, “She’s a rata and it ain’t
right. She claims to be OG badass, but calls juras and goes on
stands. Any issues we’re gonna have should have been kept in
the hood. She should have told the older homeboys what
happened, but didn’t. Why? She’s lien. She called the juras and
testified in court. Not cool.”
       Santa Anna explained that “jura” meant a police officer and
“rata” meant rat, a person who tells on people -- something that
was just not done in her neighborhood. She added that the
Marianna gang discouraged testifying in criminal cases. Santa
Anna considered Veronica’s statements to be threats, and she
feared for her life.
Defense evidence
       Sheri Garcia testified to a close relationship with defendant
who had been her boyfriend for 26 years. Although defendant
was a member of the Marianna Maravilla gang, Garcia denied
that she was a member. Garcia was acquainted with Santa
Anna, who was her nephew’s godmother. Garcia testified that




                                 9
she was present in 2014 when Santa Anna went to a friend’s
house to tell him that someone from Marianna had “hit up” her
son. Santa Anna was angry and wanted to know who had done
it. When defendant came up behind Santa Anna, she turned, “got
all crazy” and said, “What the fuck are you looking at? What are
you going to do?” Defendant laughed, and Santa Anna “kind of,
like swung.” “She tried to kind of, like, hit him,” but Garcia
placed herself between them and “kinda stopped her.” Garcia
then pushed Santa Anna against the fence and told her she
needed to stop. Defendant did not beat Santa Anna up or punch
her repeatedly, nor did anyone else that day.
       Garcia attended both the funeral and celebration of life
reception for Parra, with Veronica, Celia, Manuel and Lucky
(whose real name she did not know). After the funeral, they
bought some marijuana, which she, defendant and Lucky
smoked. They arrived at the reception at 6:00 p.m. They saw
Santa Anna going toward the apartment and they followed her
in.
       Garcia took photographs at the party, some showing Santa
Anna near defendant, although there was no interaction between
the two. Both men in Garcia’s group had shaved heads, as did
many of the men there. Defendant was wearing black pants, a
black long-sleeved shirt, one of the shirts with Parra’s picture,
maybe a hat, and sneakers. Garcia did not see him change
clothes during or after the party, and she did not see him or
anyone else in her group or at the party wearing Dr. Martens
shoes. Garcia testified that every time she saw Santa Anna at
the party, she had a 12-ounce can of Modelo beer in her hand, but
she did not know whether it was the same can or different cans.
Garcia saw Camacho give Santa Anna some cognac in a plastic




                               10
cup once, early in the evening, and saw Santa Anna drink it.
Garcia could not tell how much cognac he gave Santa Anna. To
Garcia, Santa Anna seemed pretty “buzzed,” slurring her words,
not walking straight, and stumbling a bit. On cross-examination,
Garcia admitted that she did not know how Santa Anna normally
talked when she was sober, and was not particularly familiar
with how she walked.
       Garcia left the party around 9:00 p.m. with defendant,
Veronica, Celia, and Lucky. Garcia testified that she owned a
silver Honda Civic and had never driven a burgundy Nissan, and
she knew of no one in her family who drove a late model
burgundy Nissan. Veronica’s car was a silver Nissan. Veronica
was a close friend with whom Garcia communicated regularly.
Veronica was also a good friend of defendant. Garcia and her
group went to an East Los Angeles motel called “the Dungeons,”
about 9:30 p.m., partied there until about 4:00 a.m., did not sleep,
and did not go back to the location of the Parra event. Garcia
claimed that they were all in one room, that defendant, Veronica,
Celia, and Lucky never left Garcia or the Dungeons, and that she
did not let defendant out of her sight. Garcia had sipped from a
“tall boy” can of beer all evening, finishing it at the Dungeons.
Garcia, defendant, and Lucky also smoked marijuana. Veronica
was in the room, but did not smoke. Celia was in the parking lot
with Manuel.
       Garcia never saw defendant kick, punch or otherwise
assault Santa Anna. Garcia acknowledged that she and
defendant had been through some tough times before, but she
stayed with him through it all, and loved him very much. She did
not want to see anything bad happen to him.




                                11
       Celia testified that she knew defendant, Garcia, Camacho,
and Parra, that she attended Parra’s funeral service and
celebration of life on October 27, 2018, with her mother, Veronica,
and her friend Lucky. Defendant was a good friend of her
mother. She knew these people and Santa Anna from
neighborhood gatherings, barbeques, and car washes, events
involving Marianna Maravilla, because her mother is a member
of the gang.
       Celia went to the celebration of life right after buying and
smoking marijuana. Celia was high when she got to the party,
and she went outside at some point for about 20 or 30 minutes to
smoke more marijuana with Manuel. There were quite a few
people at the party, and she paid attention primarily to the
people she came with: her mother, Lucky, Garcia, defendant, and
Manuel. Defendant wore blue or black jeans, a long sleeve black
shirt, a shirt with Parra’s picture on it, black sneakers with white
lining at the bottom, and a burgundy hat that night.
       Celia noticed that there was always a bottle of beer in
Santa Anna’s hand at the reception. At one point she saw Santa
Anna ask Camacho for his bottle of Hennessey and he gave her
one shot. Celia testified to having seen Santa Anna stumbling
the whole night, and slurring her words such that Celia could not
understand what she was saying. Santa Anna appeared to be
under the influence of alcohol, and Celia tried to stay away from
her. On cross-examination Celia testified that prior to the party,
she had not paid attention to how Santa Anna walked, did not
have much experience listening to her talk, and did not go out of
her way at any social occasions to speak to her. She knew who
Santa Anna was, but they did not spend time together, and her
mother was not a close friend of Santa Anna.




                                12
      Celia and her group left around 9:00 or 9:30 p.m. Celia
rode with her mother and Lucky, while defendant and Garcia
were in another car. They went to the Dungeons, where they
would often “hang out.” Celia was there maybe two hours at the
most, and defendant was there the entire time that she was, in
the same room with her, Lucky, and Veronica. Celia testified
that at some point defendant left to go home, but she could not
remember the time. Later in her testimony, Celia said that she
did not see defendant leave the Dungeons.
      Celia testified that she was friendly with both Garcia and
defendant and that she saw defendant often. Veronica was a
very good friend of defendant and they would talk on the phone
quite a bit. Celia lived with her mother in San Bernardino and
whenever she and her mother went to Los Angeles, they almost
always saw defendant. Garcia asked Celia to testify and gave her
a ride to court on the day Celia testified. Garcia told her she was
in court the day before, and they talked about what had
happened on October 27 and the morning of October 28.
      Celia identified her mother’s photograph from Santa
Anna’s Facebook page in evidence. She first saw the Facebook
page in January 2019, a few days after it was posted. From what
was said, it appeared to Celia that Veronica was unhappy with
Santa Anna. Celia explained that “rata” meant snitching. She
could not recall that anyone called Santa Anna a rata before she
accused defendant of attacking her. Now, everyone was talking
about the accusation. Celia testified that she liked defendant and
did not want anything bad to happen to him.




                                13
                             DISCUSSION
I. Admission of the Facebook page
       Defendant contends that the trial court erred in admitting
Santa Anna’s Facebook page (the Facebook evidence) without
giving a limiting instruction. The Facebook evidence was
admitted after Santa Anna testified that she perceived Veronica’s
comments as threats, and she feared that her life was in danger.
       “Evidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that
witness and is therefore admissible. [Citations.] An explanation
of the basis for the witness’s fear is likewise relevant to her
credibility and is well within the discretion of the trial court.
[Citations.]” (People v. Burgener (2003) 29 Cal.4th 833, 869.) It
is unnecessary to show that a perceived threat is linked to the
defendant, as “[i]t is not necessarily the source of the threat -- but
its existence -- that is relevant to the witness’s credibility.” (Id.
at p. 870.) “[E]vidence that a witness testifies despite fear is
important to fully evaluating his or her credibility. [Citation.] . . .
[T]he prosecution [is] not required to show that [the] testimony
was inconsistent with prior statements or otherwise suspect.”
(People v. Valdez (2012) 55 Cal.4th 82, 135-136, fn. omitted.) A
trial court’s exercise of discretion with regard to the admissibility
of evidence “‘must not be disturbed on appeal except on a showing
that the court exercised its discretion in an arbitrary, capricious
or patently absurd manner that resulted in a manifest
miscarriage of justice. [Citations.]’ [Citation.]” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) A miscarriage of
justice occurs when it appears that a result more favorable to the
appealing party would have been reached in the absence of the




                                  14
alleged errors. (People v. Watson (1956) 46 Cal.2d 818, 836; see
Cal. Const., art. VI, § 13.)
      We observe that throughout his briefs, defendant refers to
numerous or lengthy discussions regarding the admissibility of
the Facebook evidence, and he describes and quotes the trial
court’s reasoning to show where he asserts its fault. However, in
reviewing the trial court’s discretion in the admission of evidence,
“‘we review the ruling, not the court’s reasoning, and, if the
ruling was correct on any ground, we affirm.’ [Citation.]” (People
v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)
      We find no evidence in the record to suggest that defendant
directed Veronica’s comments, authorized them, acquiesced in
them, or even had any knowledge that she made them.
Nevertheless, defendant contends that because there was no
limiting instruction, the jury was permitted to use the Facebook
evidence as evidence of defendant’s consciousness of guilt.
However, as respondent points out, defendant did not request a
limiting instruction. The trial court was not obliged to give one
sua sponte. (People v. Valdez, supra, 55 Cal.4th at p. 139.)
Where, as here, a witness’s fear is relevant to a legitimate
purpose such as supporting the witness’s credibility, and the
evidence “was not ‘a dominant part of the evidence against’
defendant[,] . . . the trial court [does] not err in failing to instruct,
sua sponte, on the evidence’s limited admissibility.” (Ibid.)
      Citing People v. Williams (2013) 58 Cal.4th 197, People v.
Mendoza (2011) 52 Cal.4th 1056, 1088, and People v.
Olguin (1994) 31 Cal.App.4th 1355, 1368 (Olguin), defendant
broadly asserts that “no California court has held that evidence of
threats is admissible without a limiting instruction when those
threats cannot be connected to the defendant.” None of the cited




                                   15
cases require a sua sponte limiting instruction. Nor did they
require evidence of a witness’s fear to be tied to any conduct of
the defendant where, as here, no evidence of witness intimidation
was admitted for the purpose of showing the defendant’s
consciousness of guilt. (See, e.g., Olguin, at p. 1368.)
       Defendant asserts that admitting the Facebook evidence
was prejudicial because the prosecutor inappropriately implied
that defendant had attempted to suppress evidence in order to
prove defendant’s consciousness of guilt. It is defendant’s
position that during the cross-examination of Celia, by
emphasizing both Celia’s and Veronica’s close relationship with
defendant, that the prosecutor bolstered the insinuation that
defendant had directed the comments which Santa Anna
perceived as threats. Defendant claims that Santa Anna also
insinuated in her testimony that it was defendant who directed
Veronica to make the threats. We disagree. Defendant
exaggerates the possible inferences that might be drawn from
Veronica’s friendship with defendant. Nowhere was there a
suggestion that Veronica’s comments implied a consciousness of
guilt by defendant or that the jury could consider those comments
to infer defendant’s consciousness of guilt. Furthermore, Santa
Anna did not say or imply that defendant directed Veronica’s
comments. Santa Anna said she feared all her old friends, and if
she implied anything, it was that Camacho was particularly
involved, as she expressly named him as an old friend she now
stayed away from.
       “A witness who testifies despite fear of recrimination of any
kind by anyone is more credible because of his or her personal
stake in the testimony. . . . [T]he fact a witness is testifying
despite fear of recrimination is important to fully evaluating his




                                16
or her credibility. For this purpose, it matters not the source of
the threat. It could come from a friend of the defendant, or it
could come from a stranger who merely approves of the
defendant’s conduct or disapproves of the victim.” (Olguin, supra,
31 Cal.App.4th at pp. 1368-1369.) Here, the most reasonable
inference was that Veronica was motivated by her friendship
with defendant and acted on her own anger.
       Defendant also contends that the evidence was
inflammatory and compromised his ability to receive a fair trial
in violation of the due process clause of the Fourteenth
Amendment in addition to California law. As defendant did not
make a constitutional argument below, we do not reach his due
process claim unless and until he establishes error under state
law. (People v. Thornton (2007) 41 Cal.4th 391, 443-444; People
v. Partida (2005) 37 Cal.4th 428, 435-439.) As defendant has not
demonstrated that the trial court abused its discretion in
admitting the Facebook evidence without a sua sponte limiting
instruction, he may not raise a due process challenge for the first
time on appeal.
       Regardless, we perceive no reasonable probability of a
different result if there had been a limiting instruction, or even if
the Facebook evidence had been excluded. Defendant contends
that prejudice must be measured under the test for federal
constitutional error set forth in Chapman v. California (1967)
386 U.S. 18, which requires the People to show beyond a
reasonable doubt that error was harmless. On the contrary, a
decision made under the ordinary rules of evidence does not
ordinarily implicate constitutional rights. (People v. Dement
(2011) 53 Cal.4th 1, 52.) Error in the admission of evidence is
generally reviewed for prejudice under the test of People v.




                                 17
Watson, supra, 46 Cal.2d at page 836, and it is the defendant who
bears the burden to demonstrate that a review of the entire cause
reveals a reasonable probability that defendant would have
obtained a more favorable result had the evidence been excluded.
(People v. Hernandez (2011) 51 Cal.4th 733, 746; see also, Evid.
Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) The admission
of evidence of a witness’s fear with or without a limiting
instruction is generally reviewed under the reasonable
probability test. (See, e.g., People v. Williams, supra, 58 Cal.4th
at p. 271.)
       Defendant argues that substantial evidence was presented
that Santa Anna incorrectly identified defendant. We disagree,
and find that these arguments are based upon a
mischaracterization of the evidence. First defendant claims that
Santa Anna testified that her attacker wore Dr. Martens shoes.
She did not. She testified that as she regained some
consciousness, she saw “Doc Martin’s” shoes, but she could not
say that they belonged to her attacker. Oliva testified that the
attacker was with a group of people. Because one of them may
have been wearing Dr. Martens shoes does not provide
substantial evidence that defendant was not her attacker.
Defendant next argues that because Oliva saw a bald assailant
and Santa Anna said defendant was wearing a beanie when he
attacked her, he must have been misidentified. We again
disagree. Santa Anna had ample time to observe defendant, who
she knew, as he approached from 15 feet away, punching his open
palm and speaking to her; and as she lost consciousness during
the two-minute beating, she could not know whether the beanie
remained on his head, nor did she so testify.




                                18
       Defendant also asserts that Garcia and Celia testified that
defendant never returned after leaving the party, and that their
testimony placed him at the Dungeons at the time of the attack.
Not quite. Although Garcia testified that they remained at the
Dungeons until about 4:00 a.m. and did not go back to the
location of the Parra event, Celia’s testimony was different. Celia
testified that she was at the Dungeons for two hours at the most,
and at some point defendant left to go home, but she could not
remember what time. Celia later testified that she did not see
defendant leave the Dungeons.
       Defendant also points to Santa Anna’s apparent mistake
identifying one of the cars that blocked the street as Garcia’s, and
evidence that Santa Anna had been drinking for several hours.6
Defendant also argues that defendant wore clothing similar to
others that evening and shaved heads were common among the
men. These facts would perhaps provide some evidence of
mistaken identity, if Santa Anna had not recognized her attacker
as someone she had encountered numerous times over a period of
years. She knew him by his nickname Moreno, and had
photographs of him on her phone and Facebook page. Defendant
had assaulted Santa Anna four years earlier at a friend’s house,
and then engaged in a fistfight with her boyfriend. Even if
Garcia’s testimony were believed, that it was Santa Anna who
“kind of, like swung” at defendant and “kind of, like, hit him”


6     The evidence is that Santa Anna drank one beer and
approximately eight ounces of cognac over a five and one-half
hour period. There was no evidence of how impaired a woman of
her size might be in that time from that amount of alcohol. Santa
Anna testified that she did not feel intoxicated.




                                19
during that incident, it is unlikely that Santa Anna would forget
him or mistake someone else for him. Particularly since she
continued to see him at Marianna Maravilla events and in their
neighborhood; and she had just seen him at the celebration of life
reception. Indeed, she identified a photograph of defendant as he
looked that evening.7
       Finally, defendant again makes the argument that the
evidence created a strong inference of defendant’s consciousness
of guilt, a position we have already rejected. He then suggests
that this was especially prejudicial because he did not have the
opportunity to question Veronica, who did not make herself
available to testify. Importantly, the trial court offered to issue a
bench warrant for Veronica, and asked if the defense wanted a
continuance. Defense counsel expressly chose not to request
either.
       We conclude that there was no reasonable probability that
defendant would have obtained a different result, either with or
without a limiting instruction. This is so because the Facebook
evidence was not a central part of the prosecution’s case. We
agree with the trial court that it was a collateral issue, “not on a
substantive issue related to the beating” or anything else that
happened that night. It related only to Santa Anna’s fear, which

7      In his summation, the prosecutor referred to photographs
of defendant which were in evidence and he argued that
defendant’s face was distinctive with a unique characteristic.
Defendant has not included the exhibits as part of the appellate
record, and as “[a]ll intendments and presumptions are indulged
to support [the judgment] on matters as to which the record is
silent” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), we
presume that the photographs support the jury’s resolution of
any identity issue.




                                 20
in turn, related to her credibility. Indeed, we would find beyond
a reasonable doubt under any test of prejudice, that if there had
been error, it was harmless.
II. Motion for mistrial
       Defendant contends that the trial court abused its
discretion in denying his motion for a mistrial due to the failure
of law enforcement to disclose having learned of the Facebook
evidence on April 23, 2019. He claims that “the defense was
blindsided mid-trial . . . , having never been informed that Santa
Anna reported said threats to the police.”
       Out of the jury’s presence, one of the investigating officers
in this case testified that he interviewed Santa Anna on April 23,
2019, regarding potential defense witnesses and their
statements. Among other things, Santa Anna told him about the
comments made by Veronica on her Facebook page, which Santa
Anna then showed to the detective. The report regarding the
interview did not include the information regarding the Facebook
material. The detective explained that he believed that Veronica
may have committed a crime separate from this case and
intended to conduct a separate investigation. Another detective
prepared a report for the separate investigation. The April 23
interview was the first time Santa Anna reported the Facebook
evidence to anyone investigating this case, according to the
detective.
       “‘A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably prejudicial
is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.
[Citation.]’ [Citation.]” (People v. Collins (2010) 49 Cal.4th 175,




                                 21
198.) A motion for mistrial “should be granted only when a
party’s chances of receiving a fair trial have been irreparably
damaged.” (People v. Ayala (2000) 23 Cal.4th 225, 283.) We defer
to the trial court’s factual findings if they are supported by
substantial evidence, and we review the court’s denial of the
mistrial motion for an abuse of discretion. (Id. at pp. 283, 299.)
“‘[A] trial court’s ruling will not be disturbed, and reversal of the
judgment is not required, unless the court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ [Citation.]” (People
v. Dunn (2012) 205 Cal.App.4th 1086, 1094.)
       Whenever the trial court is vested with discretion, “‘[t]he
burden is on the party complaining to establish an abuse of
discretion, and unless a clear case of abuse is shown and unless
there has been a miscarriage of justice a reviewing court will not
substitute its opinion and thereby divest the trial court of its
discretionary power.’ [Citations.]” (Denham v. Superior Court,
supra, 2 Cal.3d at p. 566.) It is thus defendant’s burden to
demonstrate that the court’s ruling was not supported by
substantial evidence, that he suffered prejudice that was
incurable by admonition or instruction, that his chances of
receiving a fair trial have been irreparably damaged, and that
the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner.
       Although defendant complains of not knowing that Santa
Anna reported being threatened, he instead argues, that it was
the admission of the Facebook evidence itself that harmed him.
He asserts that the prosecution used the Facebook evidence to
establish his identity as the perpetrator, to convince the jury that
he had attempted to prevent Santa Anna from testifying. We




                                 22
have previously rejected these contentions. Moreover, he cannot
claim to have been blindsided midtrial with the Facebook
evidence. The Facebook page was public. The prosecutor found it
on his own on May 8, 2019, without knowing that Santa Anna
had shown it to one of the detectives. Defense counsel
acknowledged that the prosecutor turned over the Facebook
evidence on the first day of trial, that she was previously aware of
it, had seen it “quite a while ago” and had been planning on using
it herself as impeachment evidence against Santa Anna.
       Defendant has failed to explain how it would have helped
the defense to know earlier what Santa Anna told the detective
about Veronica’s Facebook comments. In reply, the defense had
taken the position that Santa Anna had not in fact felt
threatened by the Facebook exchange. However, at the time of
the motion for mistrial, the Facebook material was not yet in
evidence and the prosecutor had not yet been allowed to question
Santa Anna about it. Perhaps defendant means that the defense
intended to show that Santa Anna did not feel threatened by the
Facebook comments, and Santa Anna’s prior report to the
detective that she felt threatened, would diminish that defense
position. If so, defendant’s explanation does not demonstrate how
the timing of his discovery of Santa Anna’s statements to
Detective Adams irreparably harmed his chances of receiving a
fair trial. Defendant concludes that if he had known about the
report to the police, his trial strategy would have been different,
with different results. However, defendant gives no hint as to
what he might have done differently, what a different trial
strategy might have been, or how it might have yielded different
results. Indeed, defendant concludes with an argument that
what prejudiced him was the inflammatory nature of the




                                23
Facebook evidence; he does not argue that it was the late
discovery of Santa Anna’s statements to the detective that
prejudiced him. We conclude that defendant has not met his
burdens in challenging the trial court’s discretion in denying his
motion for mistrial.
III. One-year enhancement
       Defendant asks that we strike his four one-year
enhancements due to prior prison terms imposed under former
section 667.5. Respondent agrees that the enhancements should
be stricken.
       The Legislature amended section 667.5, effective January
1, 2020. (See Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Prior to
the enactment of the legislation, section 667.5, subdivision (b)
provided for the imposition of a one-year enhancement upon a
felony sentence for each separate prior prison term served for
“any felony” (with an exception not applicable here), where a
period of five years has not elapsed since the defendant has been
free from custody. Section 667.5, subdivision (b) now requires
that the one-year enhancement be imposed only for each separate
prior prison term served for a conviction of “a sexually violent
offense as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.” The “‘amended statute [applies]
to all defendants whose judgments are not yet final on the
statute’s operative date.’ [Citations.]” (People v. Lopez (2019) 42
Cal.App.5th 337, 341.) None of defendant’s prison priors is
enumerated in Welfare and Institutions Code section 6600,
subdivision (b), and this case is not final. (See People v.
Vieira (2005) 35 Cal.4th 264, 306.) Thus the amended statute
applies retroactively to this case.




                                 24
       Defendant asks that we remand with directions to the trial
court to strike the four one-year enhancements. However, we
agree with respondent that as the trial court exercised its
discretion to impose the maximum sentence, remand is
unnecessary and this court may strike the enhancements. (See
People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Lopez,
supra, 42 Cal.App.5th at p. 342.)
                           DISPOSITION
       The four one-year enhancements imposed pursuant to
section 667.5, subdivision (b), are stricken. As so modified and in
all other respects, the judgment is affirmed. The trial court is
directed to prepare an amended abstract of judgment reflecting
this modification, and to forward a copy of the amended abstract
to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                              ____________________________, J.
                              CHAVEZ

We concur:


__________________________, Acting P. J.
ASHMANN-GERST


__________________________, J.
HOFFSTADT




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