Filed 1/21/14 P. v. Nochez CA2/7
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                         B244256

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA392163)
         v.

NILTON NOCHEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford
L. Klein, Judge. Affirmed.
         Gregory Demirchyan, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                                         _______________________
        Nilton Nochez, convicted of assault with a deadly weapon (Pen. Code, § 245,
subdivision (a)(1)) and possession of controlled substance paraphernalia (former Health
& Saf. Code, § 11364, subd. (a)(1)), appeals his assault conviction on the ground that the
court committed reversible error when it admitted prior out-of-court statements made by
two witnesses. We affirm.


                    FACTUAL AND PROCEDURAL BACKGROUND

        Nochez was charged with assault with a deadly weapon and possession of
controlled substance paraphernalia after an altercation he had with his mother Ana Mejia
and his seventeen-year-old half-brother, Kevin E. Prior to trial, he pleaded no contest to
the second count.

        A. Kevin E.

        On December 6, 2011, Kevin E. told the police that during a heated argument with
Mejia, Nochez followed Mejia into her bedroom and pushed her against the wall; that
Kevin E. attempted to intervene in the dispute by standing between Mejia and Nochez;
that this upset Nochez; that Nochez took a box cutter and placed the blade from the cutter
against Kevin E.’s neck; that Nochez told Kevin E., “I’m going to stab you”; that he
pushed Nochez’s hand out of the way as Nochez slashed out with the blade; that Kevin E.
raised his left arm to protect himself; and that Nochez sliced Kevin E.’s left arm.
        At the preliminary hearing, however, Kevin E. testified that the cut was an
accident: Nochez was waving a box cutter blade at him, and “then I came close to him,
so he didn’t know what was happening. So it’s kind of like he cut me by accident on the
arm.”
        At trial, Kevin E. continued to describe a family altercation: he testified that
Nochez and Mejia had become involved in an argument, that Nochez was screaming at
Mejia, and that he had intervened to quiet Nochez. Nochez did not calm down, but
instead went into the kitchen and began throwing items around. Mejia and another one of
her sons called the police. Kevin E. testified that he then cut himself along the left arm

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with Nochez’s box cutter because he was afraid of Nochez and believed that this was “the
only way I knew he was going to get away from me.” He cut himself so that the police
would arrest Nochez.
       The prosecutor questioned Kevin E. about prior statements he had made, and
Kevin E. acknowledged that he had told police on the day of the incident that Nochez had
cut him. The prosecutor began asking questions about details of the account Kevin E.
had given the police, and defense counsel objected that it was inappropriate
impeachment. The court responded that the evidence was admissible “as a prior
consistent statement,” and said that it would permit the prosecutor to elicit evidence
concerning the context of the statement. Thereafter, in response to the prosecutor’s
questions, Kevin E. admitted that he had told the police that Nochez cut him with the box
cutter and confirmed other details of the account he had previously given the police.
Kevin E. also acknowledged that on December 26, 2011, his brother called the police
again, causing the police to come to the home. At that time, Kevin E. again told the
police that Nochez had cut him on the arm with a box cutter. He told a detective about
the argument, his attempt to intervene, and Nochez’s slashes at him with the box cutter,
causing cuts to Kevin E.’s left forearm.
       Kevin E. further acknowledged in response to the prosecutor’s questions that he
had testified at the preliminary hearing that during the argument, Nochez screamed at him
and threw things. As the prosecutor began to run through the questions and answers
given by Kevin E. at the preliminary hearing, defense counsel offered to stipulate to the
content of the preliminary hearing testimony. At sidebar, the court said to the prosecutor,
“You’ve already impeached him with what he told the officer. This is the third time.
You’re sort of going over—.” The prosecutor emphasized that the preliminary hearing
testimony was under oath, but agreed to limit his questions about the testimony to two
minutes. Resuming testimony, Kevin E. admitted that he had testified at the preliminary
hearing that the cut was an accident. Kevin E. acknowledged that he had previously
testified at the preliminary hearing that Nochez put the box cutter to his neck and
threatened to cut him.

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       Kevin E. testified that he cared about his older brother and did not want to get him
into trouble.
       On cross-examination, Kevin E. again testified that he had cut himself. He
acknowledged that he had testified previously that it was an accident, but that he had not
told the police that when he first spoke with them. He agreed that he had now given three
different accounts of what had occurred.

       B. Mejia

       Mejia, the mother of Nochez and Kevin E., also testified at trial. She described an
argument she had with Nochez and said that Kevin E. came into the room when Nochez
raised his voice. Nochez and Kevin E. began arguing. According to Mejia, her sons
went into the kitchen. She did not see what Nochez did there, and she did not see him
throw or break anything.
       The prosecutor then played a recording of a 911 call in which Mejia told the 911
operator that Nochez had “broke[n] the table” and “put the food in the wall.” Mejia
agreed that she had made that call and that those things had happened, but claimed that
this was a different day than the day that Kevin E. was cut. On the day that Kevin E. was
cut, she witnessed Kevin E. telling Nochez, “No, Nilton, look what you did to me. Oh,
look at what you did to me, dude.” Nochez responded, “You know that you cut
yourself.” The police came to the home shortly after Kevin E. was cut. She did not tell
them that she heard Nochez tell Kevin E. that he had cut himself. Kevin S. told her a
week after he was cut that he had done it himself; she did not tell the police .
       Mejia denied speaking with the police after Nochez was arrested. She denied
being interviewed by telephone in Spanish by an officer named Cardenas. She also
denied telling Cardenas on December 27 that Nochez argued with her in the kitchen
because he was trying to sleep but there was too much noise.
       The prosecutor asked whether she told Cardenas that Nochez pushed her, and
defense counsel objected on the grounds that this was improper impeachment. The court
overruled the objection, and Mejia denied telling Cardenas that Nochez pushed her.

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Mejia also denied that she had told Cardenas that Nochez followed her into her bedroom.
When the prosecutor asked whether she had told Cardenas that Nochez pointed his finger
at her and began to yell when Kevin E. entered the room, she said, “I don’t know if it was
the 27th, the day that—I do remember speaking to an officer. There were two officers
that arrived, but I don’t know if that was on the 27th of December. I only remember that
when they came to take the report for Kevin, they had asked me what happened and, I
had said that Nilton had pointed at me with his finger, and that that is why Nilton and
Kevin started to argue.” She said she had told Cardenas that Nochez pulled out a yellow
box cutter and cut Kevin E. with it, then fled the home.
       The prosecutor asked Mejia whether she had told Cardenas these things after
Nochez was arrested, and she answered, “After they arrested, no. That was the same day.
No, because that was the day that—well, the same day Nilton left the house. He was not
arrested that day.” The prosecutor asked, “So you’re saying that you did not say those
things to an Officer Cardenas after Nilton was arrested?” Mejia responded, “I just don’t
know what officer and I don’t know what officer made the report. I’m just talking about
the day that I told an officer—I told him about what had happened, and that was the day
that the report was taken. But on that particular day, Nilton had not been arrested. He
wasn’t arrested until the 26th of December.” “And after the 26th of December,” the
prosecutor asked, “did you tell an officer who interviewed you on the phone in Spanish
all of those things that I just asked you?” Mejia responded, “Wow. Well, no. I don’t
remember talking to an officer afterwards by phone.”
       Andres Cardenas later testified that he had spoken with Mejia over the telephone
on December 27, 2011, and that she had told him that Nochez took out a knife and cut
Kevin E. The jury convicted Nochez of assault with a deadly weapon. Nochez appeals.

                                      DISCUSSION

       I.     Introduction of Prior Statements by Kevin E.

       Nochez argues that the trial court erred when it permitted the prosecution to
impeach Kevin E. with prior statements he made to the police concerning the incident.

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Nochez acknowledges that the statements Kevin E. made to the police regarding how he
sustained his injuries were admissible under Evidence Code section 1235 because they
were inconsistent with the account he gave at trial of how he was injured, but Nochez
contends that other prior statements elicited by the prosecutor—specifically, that Kevin
E. had told the police that Nochez began to argue with Mejia; that the argument began in
the bedroom; that Kevin E. attempted to intercede on his mother’s behalf; and that
Nochez had a box cutter—were not admissible as prior inconsistent statements or as prior
consistent statements and were therefore improperly admitted.
       Assuming for the purposes of argument that the trial court admitted prior
statements not encompassed within Evidence Code sections 1235 (prior inconsistent
statements) or 1236 (prior consistent statements), Nochez has not established any
prejudice from the admission of these statements. As Nochez acknowledges, state law
errors in the admission of hearsay are reviewed under the standard of People v. Watson
(1956) 46 Cal.2d 818, 836. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Nochez
contends that there was a reasonable probability that absent the admission of these
statements the result of the trial would have been more favorable to him because “the
extrajudicial narratives were given so much importance and attention that they, for all
intent[s] and purposes, displaced and overshadowed [Kevin E.’s] version of the facts as
he testified on the stand, a version that strongly undermined the prosecution’s theory
regarding how [Kevin E.] sustained his injuries,” leading to a reasonable possibility that
the jury was so preoccupied by these statements that it did not give due consideration to
Kevin E.’s assertion at trial that the injuries were self-inflicted. This speculation as to
jury preoccupation finds no support in the record. As Nochez admits, Kevin E.’s prior
statements to the police that the argument was initially between Nochez and Mejia in the
bedroom, that Kevin E. came to his mother’s aid, and that Nochez had a box cutter were
not inconsistent with Kevin E.’s account at trial. Because the prior statements of which
Nochez complains were consistent with Kevin E.’s trial testimony and concerned not the
actual injury to Kevin E. but the circumstances preceding it, there is no reasonable
possibility that these statements presented a significant diversionary prospect to the jury

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or that Nochez would have obtained a better result had these statements not been
admitted into evidence.
       Nochez further argues that the admission of the prior statements was prejudicial
because the prior statements conferred a credibility advantage on Kevin E.’s account to
the police that Nochez deliberately cut him: that “the extrajudicial content” gave his
statement to the police the advantage “of being placed within a narrative context that
gives it seeming credibility and believability simply because the statement is part of a
story that is both structurally coherent and given a great deal of importance and
attention.” Absent these statements, Nochez contends, the varying accounts he gave
would have been on an equal footing, leaving the jury to determine what happened on the
basis of Kevin E.’s credibility. It is therefore reasonably possible, Nochez argues, that
the jury would have believed Kevin E.’s trial testimony were it not for the extrajudicial
accounts that were presented at trial “and that likely prevented the jury from engaging in
the kind of reasoning and deliberation that is directed at gauging the credibility of the
witness.” This argument is unpersuasive, however, because the narrative context of all
the accounts that Kevin E. gave was generally consistent—there was an altercation
between Nochez and Mejia, Kevin E. became involved, Nochez had a box cutter—and
only then do the accounts begin to diverge, with Kevin E. reporting at different times that
Nochez cut him deliberately, that Nochez injured him accidentally, and that he (Kevin E.)
had cut himself. There is no reason to believe that the extrajudicial statements of which
Nochez complains tended to privilege one account of events over another, nor is there
any basis in the record for suspecting that these statements in any way hampered the jury
in determining this witness’s credibility. Nochez has not established any prejudice here.

       II.    Introduction of Prior Statements by Mejia

       On cross-examination of Mejia, the prosecutor attempted to impeach her
testimony that Kevin E. had told her after the incident that Nochez had not injured him
but that he had injured himself by questioning her about a conversation she had on
December 26 or 27, 2011, with a Spanish-speaking officer named Cardenas. Nochez


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asserts that the impeachment was “procedurally inappropriate” for two reasons: first,
because Mejia denied speaking with Cardenas, “the prosecutor’s query was answered
early on, and so he should have moved on to his next question.” Second, he contends, the
prosecution “was either putting words into Mejia’s mouth that she did not in fact say to
Cardenas, or if she did say them, they were clearly hearsay.” We identify nothing
improper about this questioning. Evidence tending to contradict a witness’s testimony is
relevant for purposes of impeachment. (People v. Cunningham (2001) 25 Cal.4th 926,
1025.) Here, the evidence of Mejia’s prior statements to Cardenas tended to counter her
trial testimony that she was not present in the bedroom when Kevin E. sustained his
injuries and that Kevin E. told her that he had cut himself, and the inquiry into her prior
inconsistent statements was therefore proper impeachment. Even if there were an error in
the questioning of Mejia, moreover, any error was harmless because the same
information would have been presented to the jury in any event: Regardless of these
questions, her testimony would have been impeached by Cardenas’s testimony that Mejia
told him over the telephone that Nochez took out a knife and cut Kevin E.


                                      DISPOSITION

       The judgment is affirmed.




                                                  ZELON, J.
We concur:




       PERLUSS, P. J.                             SEGAL, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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