Filed 3/30/16 P. v. Aparicio CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052387

         v.                                                            (Super. Ct. No. 14NF1885)

ARTURO ORTEGA APARICIO,                                                OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
                   Arielle Bases, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.


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              A jury convicted defendant Arturo Ortega Aparicio of assault with a deadly
weapon (Pen. Code, § 245, subd. (a), all further references are to this code). The court
placed defendant on probation on various conditions, including 90 days in jail, and
ordered defendant to stay away from the victim and his family.
              We appointed counsel to represent defendant on appeal. Counsel filed a
brief summarizing the proceedings and facts of the case and advised the court she found
no arguable issues to assert on defendant’s behalf. (Anders v. California (1967) 386 U.S.
738; People v. Wende (1979) 25 Cal.3d 436.)
              To assist us in our independent review of the record, counsel suggested we
consider the issues discussed below. Defendant filed a supplemental brief on his own
behalf, which we will also discuss below.
                                         FACTS
              We recite the facts in the light most favorable to the judgment, drawing all
reasonable inferences in support thereof. (People v. Rodriguez (1999) 20 Cal.4th 1, 11;
People v. Villasenor (2015) 242 Cal.App.4th 42, 47-48.) Defendant and the victim,
Omar Castillo, live in adjacent apartment complexes. Their garages face one another and
are separated by an alley.
              One day Castillo was walking towards his garage with his wife, 12-year-old
son, and baby. Defendant was outside his garage with a friend. Defendant was
sharpening a long knife and defendant and his friend were looking at Castillo in a
threatening way (“mad-dogging”). Castillo walked towards defendant to ask if there was
a problem.
              Defendant cursed Castillo and started swinging a hammer at him. Castillo
backed away, but defendant pressed forward. Defendant swung the hammer at Castillo
four or five times and hit him once. Castillo then punched defendant in the right eye.
Defendant became upset and threw the hammer at Castillo. Castillo dodged the hammer.



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              Defendant next began trying to stab Castillo with a switch blade knife.
Defendant chased Castillo who backed away from him and into a parked car. Castillo fell
on the trunk of the car and then onto the floor. At some point defendant stabbed Castillo
in the leg with the knife and inflicted a two inch laceration. Defendant continued trying
to stab Castillo until another neighbor pulled defendant off Castillo.
              Castillo’s 20-year-old daughter was in her bedroom when her little brother
banged on her window and told her to call 911 because her father was being attacked.
She ran outside and called the police. Castillo’s wife said defendant still scared her and
she was afraid to testify because she was scared he will hurt them. At the time of trial
defendant was still giving her scary looks.
              Defendant testified to a different version of the assault in which he was the
victim, not the aggressor. Other neighbors testified they too had conflicts with Castillo.
                                       DISCUSSION
              We have independently reviewed the entire record according to our
obligations under Anders v. California, supra, 386 U.S. 738 and People v. Wende, supra,
25 Cal.3d 436, but found no arguable issues on appeal.
              (1) Counsel suggests we consider whether the prosecutor committed
misconduct in questioning Castillo. Over defense objections (argumentative, asked and
answered), the prosecutor elicited testimony from Castillo that he was “different” from
his neighbors in the sense that he was a “proud American,” and he waives an American
flag at home. We perceive no prosecutorial misconduct in these questions.
              (2) Counsel suggests we consider whether the court erred in allowing
Castillo to testify to his level of Americanism as reflected in the testimony cited in the
preceding paragraph. She suggests this evidence was irrelevant, or at least should have
been excluded under Evidence Code section 352 (section 352). But no objections on
those specific grounds were stated in the trial court, so even if they had merit they could
not be a basis for reversal. (Evid. Code, § 353, subd. (a).)

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              (3) Counsel suggests we consider whether defendant’s statements to the
responding police officers that the knife was in his garage were inadmissible because
they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. But again no
such objection was stated in the trial court, so even if it had merit it could not be a basis
for reversal. (Evid. Code, § 353, subd. (a); People v. Crittenden (1994) 9 Cal.4th 83, 116
[Miranda based claims are governed by this rule].) And, in any event, the record
provided to us does not reveal whether defendant made these statements during a
custodial interrogation. (Miranda v. Arizona, supra, 384 U.S. at p. 444.)
              (4) Counsel suggests we consider whether the court erred by overruling
defendant’s hearsay objection and allowing Castillo’s daughter to testify that her brother
banged on her window and told her to call 911 because their father was being attacked.
She suggests this was inadmissible testimonial hearsay. (Crawford v. Washington
(2004) 541 U.S. 36.) Once more no objection on these specific grounds was stated in
the trial court, so it could not be a basis for reversal. Further, this testimony was relevant
for the nonhearsay purpose of explaining what she did next (i.e. call 911 and run outside
to witness the ongoing assault) so it was admissible under Crawford. (Id. at p. 60, fn. 9.)
              (5) Counsel suggests we consider whether the court erred by allowing
Castillo’s wife to testify she still feared defendant. He suggests this evidence should
have been excluded under section 352. We conclude the trial court did not abuse its
broad discretion to admit this evidence. (People v. Holford (2012) 203 Cal.App.4th 155,
167 [Trial court’s exercise of discretion under section 352 will not be disturbed on appeal
except on a showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice].)
              (6) Counsel suggests we consider whether the court erred by giving,
without objection, CALCRIM No. 371 – “Consciousness of Guilt: Suppression and
Fabrication of Evidence.” This instruction was properly given based on the evidence that
defendant told the police officers the knife was in his garage but it was never found.

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              (7) Counsel suggests we consider whether the court erred by giving, over
defendant’s objection, CALCRIM No. 3472 – “Right to Self-Defense: May Not Be
Contrived.” This instruction was properly given based on Castillo’s testimony that
defendant and his friend were looking at Castillo in a threatening way before assault.
              (8) Counsel suggests we consider whether the court imposed invalid
probation terms because, “Courts have consistently emphasized the importance of
narrowing any no-contact orders.” (See People v. Ponce (2009) 173 Cal.App.4th 378,
385.) The court here orally ordered defendant “not to initiate any contact with Omar
Castillo or his family or his wife or kids.” The court apparently also signed a written
protective order which required defendant to stay at least 25 feet from Castillo, but that
order was not included in the record provided to us. These no contact orders do not
appear to be impermissibly overbroad.
              (9) Defendant’s supplemental brief essentially reargues the facts and
reiterates his contention that he was the victim not the aggressor. The jury considered
and rejected these arguments and it is not our role to reweigh the evidence.
                                      DISPOSITION
              The judgment is affirmed.



                                                  THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.



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