Filed 9/30/13 P. v. Parrasillas CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063299

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS257860)

BRAULIO PARRASILLAS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Kathleen M. Lewis, Judge. Affirmed.

         Alex Kreit, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Warren

Williams, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted Braulio Parrasillas of inflicting corporal injury on a cohabitant

(Pen. Code, § 273.5, subd. (a).) Parrasillas appeals contending the trial court erred in
failing, sua sponte, to instruct the jury to consider evidence of his extrajudicial statements

with caution. The respondent agrees the trial court erred in failing to so instruct, but

argues the error was harmless.

       We agree that the trial court had a duty to instruct the jury to view the defendant's

out-of-court statements with caution. We are satisfied, however, that the error was

harmless. Accordingly, we will affirm the judgment.

                                 STATEMENT OF FACTS

       On June 26, 2012, the victim, Johanna Gonzalez, got into an argument with

Parrasillas, with whom she was living at the time. She went upstairs to pack her things in

order to leave. Parrasillas followed her upstairs.

       As the argument continued upstairs, Parrasillas told Gonzalez to "shut the fuck

up." After further words, Parrasillas struck Gonzalez in the face, knocking her to the

floor. He told her, "I don't care if you call the cops." Gonzalez called her aunt, Mirna

Suarez, to come and pick her up.

       Gonzalez was waiting outside the house when Suarez arrived. After she arrived,

Suarez observed a "pinkish, purplish" bruise on Gonzalez's face. Gonzalez explained that

she and Parrasillas had been in an argument and that he had struck her.

       Suarez talked with Parrasillas outside the house and asked him what had

happened. Parrasillas said, "It just happened. It was like an accident."

       After Gonzalez was taken to her mother's house, police were called. A police

officer arrived and interviewed Gonzalez. He observed she was traumatized and her left

eye was swollen and had a lump the size of a golf ball.

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       Parrasillas testified in his own defense. He acknowledged there had been an

argument that day and that the argument continued upstairs. He denied ever hitting

Gonzalez or using force on her. Parrasillas also denied telling Gonzalez to "shut the fuck

up" or "I don't care if you call the cops."

       Parrasillas said he talked to Suarez after she arrived and that Suarez asked him

what happened. He told Suarez, "I don't know, ask her." He denied telling Suarez, "It

just happened. It was an accident."

                                        DISCUSSION

       When the trial court instructed the jury, it failed to include CALCRIM Nos. 358

and 359 in those instructions.1 The parties agree that case law requires trial courts to

instruct jurors to consider a defendant's out-of-court statements with caution and that a

conviction cannot be based on such statements alone. (People v. McKinnon (2011) 52



1       CALCRIM No. 358 provides: "You have heard evidence that the defendant made
[an] oral or written statement[s] (before the trial/while the court was not in session). You
must decide whether the defendant made any (such/of these) statement[s], in whole or in
part. If you decide that the defendant made such [a] statement[s], consider the
statement[s], along with all the other evidence, in reaching your verdict. It is up to you to
decide how much importance to give to the statement[s]. [¶] Consider with caution any
statement made by (the/a) defendant tending to show (his/her) guilt unless the statement
was written or otherwise recorded."
        CALCRIM No. 359 provides: "The defendant may not be convicted of any crime
based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's
out-of-court statements to convict (him/her) if you conclude that other evidence shows
that the charged crime [or a lesser included offense] was committed. [¶] That other
evidence may be slight and need only be enough to support a reasonable inference that a
crime was committed. [¶] The identity of the person who committed the crime [and the
degree of the crime] may be proved by the defendant's statement[s] alone. [¶] You may
not convict the defendant unless the People have proved (his/her) guilt beyond a
reasonable doubt."
                                              3
Cal.4th 616, 679; People v. Zichko (2004) 118 Cal.App.4th 1055, 1058.) Given there is

no dispute that the court should have used the two instructions, the only question

presented in this case is whether the omission was harmless.2

                                     A. Harmless Error

       We turn then to the question, whether the error was harmless. Case law also

establishes that failure to give the two instructions in this case is subject to harmless error

analysis. In evaluating the possible prejudice arising from an error we must determine

whether, after weighing the evidence, it appears reasonably probable that a result more

favorable to the defendant would have been reached in the absence of the error. (People

v. Beagle (1972) 6 Cal.3d 441, 455; People v. McKinnon, supra, 52 Cal.4th at p. 679.)

       The purpose of these instructions is to help the jury determine whether the

statements attributed to the defendant were actually made. In analyzing potential

prejudice reviewing courts consider whether there were conflicts regarding the content of

any statements or whether they were made at all. (People v. Pensinger (1991) 52

Cal.3d 1210, 1268.)

       Where the defendant's denials of the statements are before the jury and the jury is

fully instructed on judging the credibility of witnesses, the omission of the cautionary

instructions can be found to be harmless. (People v. Wilson (2008) 43 Cal.4th 1, 20.)


2       CALCRIM No. 359 relates to the requirement that there be a corpus delicti
established for the crime independent of the out-of-court statements. There is no serious
challenge to the sufficiency of the corpus delicti here. There was an eye witness to the
injury, Gonzalez. Suarez saw the fresh bruise on Gonzalez's face and a police officer saw
the bruise shortly thereafter. There is evidence, independent of any statements, to
establish the commission of the crime.
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                                         B. Analysis

         Whether the defendant made the three challenged statements was disputed at trial.

He denied making the statements to Gonzalez and explained he made a slightly different

statement to Suarez than that to which she testified. Analysis of the potential prejudice

from failure to give a cautionary instruction requires a weighing of the evidence against

any potential prejudice. Here the jury had the testimony of Gonzalez to the fact

Parrasillas struck her. Both Suarez, and the police officer observed a significant fresh

bruise to Gonzalez's eye, when she was picked up by Suarez and seen shortly thereafter

by police. Yet, Parrasillas denied he struck Gonzalez or that she had been harmed at the

house.

         More importantly, the extrajudicial statements are not terribly significant. The

fact Parrasillas told Gonzalez to "shut the fuck up" really contributes little, if anything, to

the question of whether he hit her in the face. The jury was aware of the stormy

relationship between the two people and certainly knew there had been an argument

preceding the blow, an argument which Gonzalez precipitated. The statement added

nothing more than there was an angry exchange going on.

         Likewise, the statement "I don't care if you call the cops" is not an admission of

guilt. It is not even clear the context of any such statement. It could possibly support an

inference he knew he had hit Gonzalez, or that there may have been an accident as he

said to Suarez. Whatever the meaning of this particular statement, the lack of a

cautionary instruction, is not reasonably probable that it affected the verdict.



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       The disputed statement to Suarez that "It just happened. It was an accident," is

likewise not an admission of guilt. It arguably acknowledges something happened, even

perhaps that he had done something to the victim. Again, the statement is not powerfully

incriminating. The jury was fully informed on issues of credibility of witnesses. It is not

reasonably probable that there would have been a more favorable result for Parrasillas if

the instruction had been given.

                                      DISPOSITION

       The judgment is affirmed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



                        NARES, J.


                       AARON, J.




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