Filed 3/17/15 P. v. Anguiano CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E060384

v.                                                                       (Super.Ct.No. FVA1301049)

JOSE MARTINEZ ANGUIANO,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash,

Judge. Affirmed.

         Trenton C. Packer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, and Charles C. Ragland and Sabrina Y. Lane-Erwin, Deputy Attorneys General,

for Plaintiff and Respondent.




                                                             1
       When an ex-employee demanded his final salary payment, defendant Jose

Martinez Anguiano beat him with a wrench.

       After a jury trial, defendant was found guilty of assault with a deadly weapon (Pen.

Code, § 245, subd. (a)(1)), with an enhancement for personally inflicting great bodily

injury (Pen. Code, § 12022.7). Defendant was placed on probation for three years, on

conditions including a 365-day jail term.

       Defendant now contends:

       1. The trial court erred by having the sole defense witness arrested in the presence

of the jury.

       2. The trial court erred by refusing to instruct on the lesser included offense of

simple assault.

       3. The prosecutor committed misconduct by misstating the evidence in closing

argument.

       We find no prejudicial error. Hence, we will affirm.

                                              I

                               FACTUAL BACKGROUND

       A.      The Prosecution Case-in-Chief.

       Abraham Yebio worked for defendant as a truck driver. They had a generally

good relationship; however, defendant did not pay him on time. For that reason, on April

12, 2013, Yebio quit.




                                              2
       On April 26, 2013, sometime after 11:50 a.m., Yebio met defendant at a truck yard

in Fontana. He was there to pick up his final paycheck and to give defendant the keys to

his truck.

       When Yebio arrived, defendant was accompanied by two men whom Yebio did

not know. Defendant said he was going to pay Yebio $80 in cash and $120 in

“Comcheks.”1 Comcheks are a kind of scrip that can be used at truck stops. Defendant

asked for the truck keys. Yebio responded, “Where is the money?” Defendant said,

“Give me some time; I need to go the truck stop and cash [the Comcheks].”

       Defendant left; he returned 10 or 15 minutes later. He walked up to Yebio, then

suddenly hit him with a wrench. One of the two men who were with defendant held

Yebio’s arms behind his back. The other man punched Yebio in the mouth. Yebio

testified that defendant hit him with the wrench three or four times — in the left side of

the head, on the forehead, on the neck, and possibly also in the back — before he lost

consciousness. The other men hit him five or six times.

       When Yebio came to, defendant and the other two men were gone. His car had

been ransacked. He still had the keys to defendant’s truck; however, he believed that

defendant had a second set of keys. He called 911 and was taken to a hospital.




       1      Misspelled in the record as “comp checks.”



                                             3
       Yebio had a concussion2 and lost six teeth. Staples were used to close a gash on

his forehead. After the attack, he suffered from dizziness, blurred vision, and numbness

in his hands and legs. By the time of trial, he continued to experience dizziness, pain,

insomnia, and breathing problems.

       Yebio drew a responding officer’s attention to a wrench on the ground. It was 18

to 20 inches long. The officer did not notice any blood on it. It was not tested for

fingerprints “[b]ecause it was covered in dust . . . .”

       When the police interviewed defendant, he admitted meeting Yebio at the truck

yard to pay him some money that he owed him.

       Yebio admitted that he had hired a lawyer to sue defendant.

       B.     The Defense Case.

       Felix Salinas used to work for defendant. He testified that, on the night of April

25-26, 2013, he slept in his truck at the truck yard. He was awake but still in the sleeper

when he heard screaming and shouting.




       2       After Yebio testified that he had a concussion, defense counsel objected
based on lack of foundation. The objection was sustained, but defense counsel did not
move to strike. Thus, we apply the principle — frequently taught in trial advocacy
classes, but rarely encountered in practice — that once testimony has been given, even if
there is an objection, and even if the objection is sustained, the jury can still consider it
unless, in addition, a motion to strike is made and granted. (People v. Letourneau (1949)
34 Cal.2d 478, 489; People v. Vetri (1960) 178 Cal.App.2d 385, 394.) The jury was not
instructed otherwise.



                                               4
         When he looked out, he saw “two guys . . . jump on [defendant’s] driver” — i.e.,

Yebio. The first punch knocked Yebio out. Even after that, the men continued to hit him.

One of them hit Yebio with a metal bar. Then the men left. According to Salinas,

defendant was not at the truck yard at the time.

         C.     The Prosecution Rebuttal.

         Gerardo Ramirez lived as well as worked at the truck yard. He knew Salinas. He

testified that he did not see Salinas on April 26, 2013. He admitted, however, that he was

not at the truck yard 24 hours a day. He also admitted that he was not present during the

fight.

                                                 II

                    ARRESTING SALINAS IN FRONT OF THE JURY

         Defendant contends the trial court erred by having Salinas, the sole defense

witness, arrested in the presence of the jury.

         A.     Additional Factual and Procedural Background.

         As indicated in part I, ante, the sole witness for the defense was Felix Salinas.

When he finished testifying, the prosecutor asked that he be subject to recall.

         This discussion ensued:

         “THE COURT: Mr. Salinas, you’re free to go. But just remain available if you

are needed again.

         “THE WITNESS: I don’t know if I’m going to be able to come again.

         “THE COURT: That is not an option, sir.



                                                 5
       “THE WITNESS: I got a job to do.

       “[THE PROSECUTOR]: Your Honor, this shouldn’t be done in the presence of

the jury.

       “THE COURT: Sir, we are not going to have this discussion; okay?

       “THE WITNESS: Okay. You call my boss and tell him —

       “THE COURT: Sir —

       “THE WITNESS: Who is going to pay my bills?

       “THE COURT: He is remanded to the custody of the sheriff.

       “THE BAILIFF: Do you want to stand up for me, please, because you’re in

custody now.

       “Hands behind your back.

       “(The witness was removed from the courtroom at this time.)

       “THE COURT: Ladies and gentlemen, obviously, there’s a little problem there.

       “You keep in mind that the witness’s statements, attitude, and conduct after he was

requested to make himself available and his subsequent lack of cooperation on that issue

was in no way a reflection on this case; okay? And therefore, you are not to consider that

for any purpose as to the guilt or innocence of the [d]efendant. It’s a separate issue not

related.

       “You evaluate his testimony as you see fit. What happened after that is not part of

that; okay?”




                                             6
           The trial court had the jury step outside. Defense counsel indicated that he was

ready to rest. The prosecutor indicated that he would be calling a single rebuttal witness.

After a lunch break, the jury returned and the rebuttal witness testified. Both sides rested.

After an exhibits and instructions conference, the trial court scolded Salinas and finally

excused him.

           The next day, the prosecutor requested a further admonition to the jury, which

would include the fact that Salinas had been released. Defense counsel noted that the trial

court had already given an admonition. He objected to mentioning that Salinas had been

released, but he agreed to an admonition that “you don’t have to consider that incident

that took place in the courtroom . . . .”

           Thus, the trial court gave the jury a further admonition, saying Salinas had been

released and the jury was to disregard “anything that happened after he finished testifying

. . . .”

           B.     Analysis.

           Significantly, defense counsel never raised defendant’s present contention below.

When Salinas was taken into custody, he did not object. When the trial court admonished

the jury, he did not argue that the admonition was inadequate. And he never moved for a

mistrial.

           “Ordinarily, an appellate court will not consider a claim of error if an objection

could have been, but was not, made in the lower court. [Citation.] The reason for this

rule is that ‘[i]t is both unfair and inefficient to permit a claim of error on appeal that, if



                                                 7
timely brought to the attention of the trial court, could have been easily corrected or

avoided.’ [Citations.] ‘[T]he forfeiture rule ensures that the opposing party is given an

opportunity to address the objection, and it prevents a party from engaging in

gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.’

[Citation.]” (People v. French (2008) 43 Cal.4th 36, 46.)

       Accordingly, an analogous claim — that the trial court erred by allowing the

defendant or a witness to appear in shackles in front of the jury — is forfeited by failure

to raise it below. (People v. Tuilaepa (1992) 4 Cal.4th 569, 583.) Likewise, a claim of

judicial misconduct is forfeited if not raised below. (People v. Maciel (2013) 57 Cal.4th

482, 533.)

       Defendant argues that an objection was unnecessary (or futile) because the

prosecutor had already objected by saying, “Your Honor, this shouldn’t be done in the

presence of the jury.” That, however, was an objection to the trial court’s discussion

with Salinas; thereafter, the trial court went beyond simply having a discussion with him

by having him arrested.3 It is not at all clear that an objection to this escalation of the

situation (or a motion for a mistrial) would have been futile.




       3      The People argue that Salinas was not “arrested”; he was merely
“temporarily remanded . . . into custody.” Po-tay-to, po-tah-to. “An arrest is taking a
person into custody . . . .” (Pen. Code, § 834.) “An arrest is made by an actual restraint
of the person, or by submission to the custody of an officer.” (Pen. Code, § 835.) Salinas
was arrested.



                                               8
       Defendant also argues that an admonition would have been ineffective. In the

analogous situation of the shackling of a witness, however, we may presume that the jury

is able to follow an admonition. (People v. Ceniceros (1994) 26 Cal.App.4th 266, 281-

282.) Also, defendant could have moved for a mistrial. A mistrial is the appropriate

remedy for any prejudice that is “‘“ . . . incurable by admonition or instruction.”’

[Citation.]” (People v. Montes (2014) 58 Cal.4th 809, 888.) Failure to move for a

mistrial, when appropriate, can constitute a forfeiture. (People v. Carrasco (2014) 59

Cal.4th 924, 965 [spectator misconduct]; People v. Russell (2010) 50 Cal.4th 1228, 1250

[juror misconduct]; People v. Jennings (1991) 53 Cal.3d 334, 383 [judge’s ex parte

communication with jury].) Defendant does not claim his trial counsel rendered

ineffective assistance by failing to object.

       Finally, defendant argues that his trial counsel did raise the issue, supposedly by

requesting an admonition. Actually, the trial court gave the first admonition sua sponte;

the prosecutor requested the second admonition. Defense counsel simply indicated that

he did not object to the second admonition, provided it was limited. In any event,

whether he requested the admonition or acquiesced in the prosecution’s request, his

failure to object to the admonition as given forfeited any claim that it was inadequate to

cure the harm.

       While we decline to reach the merits, we do believe that the court could have

handled this situation differently. It would seem that, instead of having Salinas arrested

in the presence of the jury, it could have just ordered him to stop talking, then asked the



                                               9
jury to step outside. Leaving aside whether this was legally required, it would certainly

have been wise. However, the trial court did not have the benefit of hindsight, as we do.

       We conclude that any error in having Salinas arrested has not been preserved.

                                             III

                              REFUSAL TO INSTRUCT ON

                LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT

       Defendant contends the trial court erred by refusing to instruct on the lesser

included offense of simple assault.

       A.     Additional Factual and Procedural Background.

       Defense counsel asked the trial court to give an instruction on simple assault as a

lesser included offense. The trial court refused, explaining: “[I]f believed that

[defendant] assaulted [the victim] at all, there is no evidence that he assaulted him other

than with a wrench. So he either assaulted him with a wrench or didn’t assault him.

That’s the only testimony.”

       B.     Analysis.

       Simple assault is a lesser included offense of assault with a deadly weapon.

(People v. McDaniel (2008) 159 Cal.App.4th 736, 747; People v. Grigsby (1969) 275

Cal.App.2d 767, 775.)

       “A trial court must instruct on all lesser included offenses supported by substantial

evidence. [Citations.] The duty applies whenever there is evidence in the record from

which a reasonable jury could conclude the defendant is guilty of the lesser, but not the



                                             10
greater, offense. [Citations.]” (People v. Duff (2014) 58 Cal.4th 527, 561.) “Thus, ‘a

trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense

which find substantial support in the evidence. On the other hand, the court is not obliged

to instruct on theories that have no such evidentiary support.’ [Citation.]” (People v.

Smith (2013) 57 Cal.4th 232, 240.)

       “‘On appeal, we review independently the question whether the trial court

improperly failed to instruct on a lesser included offense.’ [Citation.]” (People v. Banks

(2014) 59 Cal.4th 1113, 1160.)

       “As used in [Penal Code] section 245, subdivision (a)(1), a ‘deadly weapon’ is

‘any object, instrument, or weapon that is used in such a manner as to be capable of

producing and likely to produce, death or great bodily injury.’” (People v. Aguilar (1997)

16 Cal.4th 1023, 1028-1029.) Defendant does not dispute that, if he hit the victim with a

wrench, as the victim testified, the wrench would be a deadly weapon. However, “deadly

weapon” does not include bare hands or feet. (Id. at pp. 1026-1027.) Defendant argues

that the jury could have found that he hit the victim only with his hands, not with a

wrench.

       Yebio was adamant that defendant hit him with a wrench. He admitted that

defendant approached him “from [his] left side, . . . from behind”; he added, however,

that he could “see [defendant] with [his] eyes” and specifically that he could see the

wrench in defendant’s hands. He told the responding officer that he had been hit with a

wrench. A wrench was lying nearby; he pointed it out to the responding officer. Even



                                                11
defense witness Salinas admitted that Yebio was hit with a metal bar — “a big piece of

metal.”

       Defendant claims there is room for doubt because, according to the “victim

statement” section of the police report, Yebio said he had been hit with a “solid object.”

However, the responding officer explained: “[D]uring my initial interview with him, . . .

he explained to me that he was attacked; he got hit by something. And during the rest of

the interview, he explained to me that he got hit by the wrench.” The same police report

also stated in a different section that defendant hit the victim with a wrench. In any event,

if defendant inflicted the victim’s injuries with any object (as opposed to a hand or a

foot), that object was a deadly weapon.

       Defendant also notes that there was no blood on the wrench. Actually, the

responding officer testified that he did not notice any blood; the wrench was never

scientifically tested. There was no expert (or other) testimony that hitting someone with a

wrench would necessarily leave visible blood. “‘ . . . “[T]he existence of ‘any evidence,

no matter how weak’ will not justify instructions on a lesser included offense, but such

instructions are required whenever evidence that the defendant is guilty only of the lesser

offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]”’

[Citations.]” (People v. Wyatt (2012) 55 Cal.4th 694, 698.) Thus, this evidence did not

call for an instruction on simple assault.

       Last, defendant argues that the jury could have found that the victim was struck by

the other two men’s fists. However, evidence that someone else hit the victim did not



                                             12
tend to show that defendant was guilty of a lesser included offense; it tended to show that

he was not guilty at all.4

       Separately and alternatively, the asserted error was harmless. “[A]n erroneous

failure to instruct the jury on a lesser included offense is subject to harmless error analysis

under People v. Watson (1956) 46 Cal.2d 818[5] . . . [E]vidence sufficient to warrant an

instruction on a lesser included offense does not necessarily amount to evidence sufficient

to create a reasonable probability of a different outcome had the instruction been given.

[Citations.]” (People v. Banks, supra, 59 Cal.4th at p. 1161.) Here, given the strength of

the evidence that the victim was hit with a wrench (or a metal bar or other solid object),

we see no reasonable probability that a jury would have found defendant guilty of simple

assault.




       4      In principle, defendant might still have been guilty as a conspirator or an
aider and abettor. The jury, however was not instructed on conspiracy or aiding and
abetting principles.

       5       In the caption of his argument, defendant asserts that the failure to instruct
on the lesser included offense “violated [his] constitutional rights.” (Capitalization
altered.) Nevertheless, he does not cite any authority for the proposition that there is a
federal constitutional right to an instruction on a lesser included offense. Quite the
contrary, he concedes that the Watson standard applies.
       If only out of an excess of caution, we note that “‘[t]here is no federal
constitutional right of a defendant to compel the giving of lesser-related-offense
instructions. [Citation.]’ [Citation.]” (People v. Foster (2010) 50 Cal.4th 1301, 1344.)



                                              13
                                            IV

                           PROSECUTORIAL MISCONDUCT

                   BY MISSTATING FACTS IN CLOSING ARGUMENT

       Defendant contends the prosecutor committed misconduct by misstating the

evidence in closing argument.

       A.     Additional Factual and Procedural Background.

              1.      Testimony of Yebio and Salinas.

       Yebio told the police that he worked for “D and A Trucking” and that defendant

was “his boss[].”

       Salinas testified that defendant was “the person I used to work for.” When asked,

“Have you ever driven a truck for anybody related to [defendant]?,” he said he had driven

a truck for defendant’s sister.

       On cross-examination, Salinas was asked:

       “Q And you also worked for Angelica Ayala; correct?

       “A I didn’t used to work for them; I just think I deliver a couple of loads for them

once and I took one of her trucks to the mechanic, and that’s all.”

       He added that he had driven for Ayala three or four times over the course of two or

three days. The name of Ayala’s company was D. A. Trucking. He then testified:

       “Q . . . [¶] And when you were working as a trucker for D. A. Trucking, or

driver, did you ever have contact with [defendant]?

       “A No.”



                                             14
       Finally, Salinas made it clear that Ayala was defendant’s sister.

              2.     Jury instructions.

       The trial court gave the standard jury instruction that: “Nothing the attorneys say

is evidence. In their opening statements and closing arguments, the attorneys discuss the

case, but their remarks are not evidence.” (CALCRIM No. 222.)

       It also gave the following ad libbed instruction:

       “Please keep in mind a couple of things: Number one, what the attorneys say is

not evidence. . . . [A]t the beginning was what they thought the evidence would show.

Now it’s their arguments of what they believe the evidence has shown.

       “None of the attorneys would intentionally mislead you but everybody forgets

things or makes mistakes. As was told you in the instructions, should they say something

that you decide was not said or find differently, and does not follow what was given in the

instructions, go by the instructions, and you decide the facts to be; nothing else.”

              3.     The prosecutor’s statement in closing.

       In closing argument, the prosecutor stated: “[Salinas] knows Angelica, the

[d]efendant’s sister, who owns D. A. Trucking Company. And D. A. Trucking Company

ultimately is run and operated by the [d]efendant. That is a huge bias . . . .”

       Defense counsel objected, “That misstates the testimony,” but the trial court

overruled the objection. It added: “As I mentioned the jury can sort out, with your

guidance.”




                                             15
       B.     Analysis.

       “‘“When a prosecutor’s intemperate behavior is sufficiently egregious that it

infects the trial with such a degree of unfairness as to render the subsequent conviction a

denial of due process, the federal Constitution is violated.”’ [Citations.] ‘“Prosecutorial

misconduct that falls short of rendering the trial fundamentally unfair may still constitute

misconduct under state law if it involves the use of deceptive or reprehensible methods to

persuade the trial court or the jury.” [Citation.]’ [Citation.] Misconduct that does not

constitute a federal constitutional violation warrants reversal only if it is reasonably

probable the trial outcome was affected. [Citations.]” (People v. Shazier (2014) 60

Cal.4th 109, 127.)

       “‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to the extent

that it suggests a prosecutor must act with a culpable state of mind. A more apt

description of the transgression is prosecutorial error.’ [Citation.]” (People v. Centeno

(2014) 60 Cal.4th 659, 666-667.)

       “For a prosecutor to misstate the evidence is prosecutorial misconduct.

[Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 550.) However, “‘“[p]rosecutors

have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.]

Whether the inferences the prosecutor draws are reasonable is for the jury to decide.”’

[Citation.]” (People v. Abel (2012) 53 Cal.4th 891, 926.)

       Yebio testified that he was “employed by” defendant. According to his statement

to the police, he worked for D. A. Trucking and defendant was his boss. From this, the



                                              16
prosecutor could properly infer — and thus could properly argue — that “D. A. Trucking

Company ultimately is run and operated by the [d]efendant.”

       Separately and alternatively, the prosecutor’s statement plainly was not prejudicial.

Salinas admitted that he had worked for defendant. Thus, the prosecutor’s basic point —

that there was evidence that Salinas might be biased — was accurate. Indeed, Salinas’s

admission that he had worked “for” defendant was even stronger evidence of bias than

the fact that he had worked for defendant’s sister or defendant’s company.

       In addition, the trial court had already warned the jurors that the attorneys might

make unintentional mistakes in closing argument. It had also instructed them that the

attorneys’ remarks were not evidence. While it overruled defense counsel’s objection, it

reminded the jurors that it was up to them to “sort [it] out.” “We assume the jury

followed these instructions, and that any prejudice . . . was thus avoided. [Citation.]”

(People v. Chatman (2006) 38 Cal.4th 344, 405.)

       Finally, we note that the prosecutor made the challenged statement in his initial

closing argument. Defense counsel got to go next and to respond to anything the

prosecutor had said. If the statement was such a whopper, one would have expected

defense counsel to point it out and turn it to his advantage. Certainly he had the

opportunity to do so; but he did not.

       We therefore conclude that defendant has not shown any reversible prosecutorial

misconduct.




                                             17
                                      V

                                  DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                RAMIREZ
                                                          P. J.

We concur:


McKINSTER
                        J.


CODRINGTON
                        J.




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