THE PEOPLE v. ALEJANDRO JOSE BANUELOS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO JOSE BANUELOS, Defendant and Appellant.

B211818

Decided: February 10, 2010

Allison K. Simkin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In an information filed by the Los Angeles District Attorney, defendant and appellant Alejandro Jose Banuelos was charged with one count of corporal injury to a child's parent (Pen.Code, § 273.5, subd. (a)),1 one count of kidnapping (§ 207, subd. (a)), and one count of criminal threats (§ 422).   As to all counts, it was further alleged that appellant had suffered one prior conviction within the meaning of section 667.5, subdivision (b).  Appellant pled not guilty to all counts.

Trial was by jury.   On September 29, 2008, the jury found appellant guilty of counts 1 and 3, and of the lesser included offense of false imprisonment (§ 236) in count 2. Appellant admitted the section 667.5, subdivision (b), allegation.

On October 23, 2008, the trial court denied probation and sentenced appellant to state prison for a term of seven years four months as follows:  as to count 1, the upper term of five years, plus an additional year pursuant to section 667.5, subdivision (b);  as to count 2, eight months, which is one-third the midterm, to run consecutive to count 1;  and as to count 3, eight months, which is one-third the midterm, to run consecutive to count 1. Appellant also was ordered to pay a restitution fine, a parole revocation fine, if applicable, a court security fee, and a domestic violence fee.

Appellant timely filed a notice of appeal.   He argues:  (1) The trial court abused its discretion in allowing appellant to be impeached with two prior juvenile adjudications for making criminal threats and committing an assault;  and (2) the trial court erred in finding that count 3 should run consecutive to count 1 because appellant possessed the same intent and objective as to both counts.

FACTUAL BACKGROUND

In accord with the usual rules of appellate review, we state the facts in the light most favorable to the judgment.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

A. Prosecution Evidence

At the time of trial, Martina A. (Martina) had known appellant for three to four years.   They used to live together and had two daughters together;  one daughter was three and a half years old;  the other was 14 months old.

On Thanksgiving Day in 2007, an incident occurred between Martina and appellant at appellant's mother's house in Lancaster.   Appellant's mother, Thelma Banuelos (Thelma), was at home and witnessed the incident.   Earlier in the day, Martina and appellant had an argument over the phone regarding their children.   Martina was supposed to have the children for part of the day, but appellant wanted to keep them longer.

Martina went to Thelma's house to pick up the children.   She and appellant had an argument in the living room because he did not want her to leave with their daughters.   He took both children to a back room while he continued to argue with Martina.   She tried to grab one of the children from appellant, and he got angry.   He grabbed a disposable razor, held it up to their oldest daughter, and told Martina to “back away” or he would use the razor on the child.   Martina knocked the razor out of appellant's hand.

Appellant, who was still holding his daughter, moved to the kitchen.   Martina thought he was trying to get a knife from one of the drawers, so she blocked them.   Appellant could not get a knife, so he grabbed a syringe from on top of the microwave oven and acted like he was going to poke his daughter with it.   The child was crying “hysterically.”   Martina begged appellant to stop what he was doing and allow her and the children to leave.

Appellant put his daughter down and filled the syringe with bleach.   He told Martina that he was going to kill her and then tried to poke the syringe into her right thigh.   Because Martina and appellant had had prior incidents where he had done violent things to her, she was scared that he might follow through with his threat to kill her.

Appellant pricked Martina with the syringe, but she moved away so that he could not insert it into her leg.   The syringe broke the skin, leaving a red dot on Martina's leg.   She tried to grab the two children and leave, but appellant had her keys.   He stopped her as she attempted to get out of the house, and told her that they were all going to leave together.   Martina tried to get her cell phone, which was on the driver's seat in her car.   Appellant grabbed the phone and “slammed it on the concrete.”   Appellant was still holding the syringe and telling Martina to get into the car or he would leave with their children.   Martina got into the car because she felt threatened.

They drove to appellant's uncle's house in Palmdale.   During the drive, appellant threatened to take out the syringe and kill Martina.   They parked in front of appellant's uncle's house.   They were fighting about Martina's boyfriend.   Appellant told Martina that she was taking his family away from him.   He told her to leave her boyfriend, and she agreed.   After about 45 minutes, she persuaded him to let her and the children leave.   Appellant asked Martina to kiss him, and she did.

After the incident, Martina saw appellant again.   Once, they met at a shopping mall so that appellant could give the children their Christmas presents.   They met one other time, in a public place to receive more presents.

Appellant's father went to his brother's house on Thanksgiving Day. He did not recall seeing appellant there;  in fact, he did not recall seeing appellant the entire day.

Thelma was uncertain whether appellant and Martina were at her house on Thanksgiving Day. She did not remember an incident between appellant and Martina around that time.

Deputy Sheriff Michael Rose took a report from Martina on Thanksgiving Day. She was agitated, visibly upset, and shaken.   He observed a puncture wound on her right thigh that was red and had slight bruising around it.   Martina also showed him her damaged cell phone.

Deputy Rose interviewed Thelma about the incident.   She told him that Martina and appellant had been arguing, but she (Thelma) had stepped out of the room.   When asked about the syringe, Thelma informed Deputy Rose that she did not understand.   Once he started to ask her specific questions, she stopped responding to him.

B. Defense Evidence

Appellant testified on his own behalf.   He denied that any of what Martina stated had occurred;  he even denied seeing Martina on Thanksgiving Day. He testified that he was not at his mother's house on Thanksgiving in 2007.   He claimed that in the morning, he was with his girlfriend, Linda Perez (Perez), at her house in Buena Park. They drove to Santa Clarita, where Perez dropped appellant off at his ex-wife's house at approximately 1:00 p.m. Ten to 15 minutes later, appellant's cousin, Valerie Banuelos (Valerie), picked him up and drove him to her uncle's house to celebrate Thanksgiving.   Appellant never left his uncle's house that day.   He spent the night there.

Appellant denied poking Martina with a needle and threatening their daughter with a needle and a razor.   After the incident, appellant contacted Detective Torres.   He could not recall whether he had told Detective Torres that he was at his mother's house on Thanksgiving.   He admitted that he and Martina had had an argument on Thanksgiving regarding visitation with their daughters.   According to appellant, Martina would not agree to allow him to see the children on Thanksgiving.   He denied being jealous of Martina's relationship with her new boyfriend.

Appellant admitted that he had suffered prior convictions and had been in prison.   He also admitted to having used drugs and alcohol in the past.   On cross-examination, appellant admitted that as a juvenile, he committed assault with a deadly weapon and went to camp as a result.   He also admitted to having served time in prison for corporal injury to his ex-wife and for other “violations.”

The prosecution played a tape of appellant's conversation with Detective Torres.   On the tape, appellant claimed that he was “nowhere near” his mother's house on Thanksgiving Day, but then he also stated a number of times that he went to her house that day.   When the prosecution asked appellant why he told Detective Torres that he was at his mother's house on Thanksgiving, he said that he misunderstood the question.   He claimed that he was referring to a different day and that he got his days mixed up.   He further claimed that he and Martina had argued the weekend before Thanksgiving because she wanted to keep the children all day on Thanksgiving.

Perez testified that she was with appellant on Thanksgiving Day at around 10:00 a.m. at her home in Buena Park. She further testified that she drove appellant to Santa Clarita that day, dropped him off around 12:00 noon, and then drove back home.

Valerie testified that she picked appellant up in Santa Clarita on Thanksgiving Day after 12:00 noon.   She drove him to her father's house, where he stayed the night.   Lydia Palma testified that she saw Valerie and appellant drive up to her uncle's house around 2:00 p.m. or 3:00 p.m. She further testified that appellant spent the night there.

DISCUSSION

I. The Trial Court Properly Permitted the Prosecution to Use Evidence of Appellant's Prior Juvenile Adjudication for Impeachment Purposes

A. Procedural Background

After discussing with appellant his right to testify, the trial court acknowledged that if appellant decided to take the stand, the prosecution was going to impeach him with the following prior convictions:  (1) a juvenile adjudication for two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) and one count of criminal threats (§ 422) from February 2000);  (2) a misdemeanor conviction for criminal threats (§ 422) from July 2001;  (3) a misdemeanor conviction for inflicting corporal injury on a spouse (§ 273.5, subd. (a)) from September 2001;  and (4) a felony conviction for inflicting corporal injury on a spouse (§ 273.5, subd. (a)) from April 2003.

In so stating, the trial court noted that all of the prior convictions were relevant and went to moral turpitude.   With respect to the April 2003 conviction, the trial court commented that it was an impeachable offense, and even though it was similar to the charge in the current case, it was not automatically prohibited under People v. Muldrow (1988) 202 Cal.App.3d 636.   And, the trial court pointed out that the People had already introduced the April 2003 conviction as a prior bad act under Evidence Code section 1109.

Furthermore, with respect to appellant's juvenile adjudication from February 2000, the trial court indicated that the two offenses were crimes of moral turpitude and close in time.   Appellant argued that the February 2000 offenses were committed when he was a juvenile and thus should not be admitted because they were not “convictions,” they violated due process because there was no jury, and they should be excluded under Evidence Code section 352 because of the “super abundance of priors.”

The trial court was not convinced and, over appellant's objection, admitted the priors, stating:  “Under [Evidence Code section] 352[,] they are relevant.   They go to his credibility.   They are close in time.”   The trial court further found that under People v. Rivera (2003) 107 Cal.App.4th 1374, juvenile adjudications could be used for impeachment purposes.

At the close of his direct examination of appellant, appellant's defense counsel asked him questions regarding the “hard times” he had had when he was younger.   Appellant admitted that he came from a turbulent family and that he had used drugs and drank alcohol.   He also admitted that he had been to prison and that he had entered into plea bargains on his other convictions.

The prosecutor then cross-examined appellant, asking him about the February 2000 juvenile petition that was found true, charging him with two counts of assault with a deadly weapon.

B. Analysis

The trial court has broad discretion to admit or exclude evidence of acts of dishonesty or moral turpitude relevant to impeachment under article I, section 28, subdivision (d) of the California Constitution.  (People v. Wheeler (1992) 4 Cal.4th 284, 293;  People v. Castro (1985) 38 Cal.3d 301, 312-313.)   This rule extends to conduct resulting in prior juvenile adjudications.  (People v. Lee (1994) 28 Cal.App.4th 1724, 1740;  In re Manzy W. (1997) 14 Cal.4th 1199, 1209.)   Assault with a deadly weapon is a crime of moral turpitude (People v. Rivera, supra, 107 Cal.App.4th at p. 1382) as is the crime of criminal threats (People v. Thornton (1992) 3 Cal.App.4th 419, 424).

Even if the evidence is otherwise admissible, the trial court must, on request, weigh the probative value of the evidence against its prejudicial effect under Evidence Code section 352.  (People v. Lee, supra, 28 Cal.App.4th at p. 1740.)  Evidence Code section 352 “permits the court, in its discretion, to exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.   The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules.  [Citation.]”  (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)   The trial court's ruling under Evidence Code section 352 will not be disturbed absent a clear showing of abuse of discretion.  (People v. Stewart, supra, at p. 65;  see also People v. Adams (1980) 101 Cal.App.3d 791, 799;  People v. Kelley (1977) 75 Cal.App.3d 672, 678.)

Appellant contends the following:  “The [trial] court did not specifically single out the juvenile adjudication for [an Evidence Code section] 352 analysis, but rather, grouped all of the priors together.   The [trial] court failed to make an analysis on whether or not these priors were cumulative and overly prejudicial.”   According to appellant, because the evidence was cumulative, “its prejudicial effect far outweighed any probative value” and thus should have been excluded.

We disagree.  “There is no automatic limitation on the number or nature of prior convictions of crimes involving moral turpitude that may be used to impeach a witness.  [Citations.]”  (People v. Johnson (1991) 233 Cal.App.3d 425, 459;  see also People v. Muldrow, supra, 202 Cal.App.3d at pp.   646-647;  People v. Stewart, supra, 171 Cal.App.3d at pp.   65-66.)   Here, the trial court properly determined that the admission of the juvenile priors weighed on appellant's credibility, particularly given that they were crimes of moral turpitude.   Accordingly, we conclude that the trial court properly exercised its discretion and permitted the People to introduce evidence of appellant's juvenile history so that the jury could evaluate appellant's credibility.

Even if the trial court erred in allowing the prosecutor to question appellant about his prior adjudications, any error was harmless.   As the parties agree, error in the admission of impeachment evidence justifies reversal only if it resulted in a miscarriage of justice.  (Evid.Code, § 353.)   A judgment may be overturned only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”   (People v. Watson (1956) 46 Cal.2d 818, 836.)   Here, the evidence of appellant's prior juvenile adjudications, which amounted to little more than a brief mention, was far less damaging to his credibility than the evidence that he told a different story to Detective Torres than the one he told in court.   And, there was strong evidence implicating appellant.   Specifically, Martina testified as to what occurred;  she never recanted or hesitated.   Moreover, there was physical evidence supporting her testimony, including the red mark on her leg and her damaged cell phone.   Under these circumstances, it is not reasonably probable that, had the evidence of appellant's prior juvenile misconduct been barred, the jury would have reached an outcome more favorable to him.  (People v. Watson, supra, at p. 836.)

II. Substantial Evidence Supports the Trial Court's Decision Not to Stay the Sentence on the Criminal Threats Count

Appellant argues that the trial court erred in failing to stay the sentence on the criminal threats count (count 3) pursuant to section 654 because he had the same intent and objective in this count as in the corporal injury to a child's parent count (count 1).

Section 654, subdivision (a) provides:  “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.   An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”  “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.   If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ”  (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)   However, “ ‘ “[i]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.”  [Citation.]’  [Citations.]”   (People v. Centers (1999) 73 Cal.App.4th 84, 98.)

“The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination.”  (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)  “A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.  [Citation.]”  (People v. Blake (1998) 68 Cal.App.4th 509, 512.)   Under this standard, the reviewing court “ ‘ “must view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence.  [Citation.]”  [Citation.]’ ”  (People v. Hutchins, supra, at pp.   1312-1313.)

Here, ample evidence supports the trial court's finding that appellant had a different intent and objective when he poked Martina in the leg with the syringe, which formed the basis of the corporal injury to a child's parent count (count 1), than when he engaged in conduct that formed the factual basis of the criminal threats count (count 3).   As the prosecutor argued during closing argument, appellant intended to frighten and intimidate Martina by making the criminal threat to her, whereas he intended to injure and possibly kill her by poking her with the syringe.  (See, e.g., People v. Solis (2001) 90 Cal.App.4th 1002, 1022.)   Appellant's implicit suggestion notwithstanding, the crimes need not be chronologically distinct.  (People v. Harrison (1989) 48 Cal.3d 321, 335.)

Finally, appellant argues that even if separate sentences were permissible, the case must be remanded for resentencing because the trial court abused its discretion in sentencing appellant based upon a misunderstanding of the facts.   In so asserting, appellant points to the trial court's comment during sentencing that there were two victims 2 when only one victim (Martina) was identified in all counts leveled against him.

As the People correctly indicate in the respondent's brief, appellant has forfeited this claim on appeal because he failed to object below.3  (People v. Scott (1994) 9 Cal.4th 331, 353.)

Even if the trial court erroneously relied upon the mistaken belief that there were two victims, appellant's claim lacks merit.   As set forth above, substantial evidence supports the trial court's finding that appellant possessed a different intent and objective when he committed each count.   Thus, he suffered no prejudice in connection with the sentencing order.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The trial court stated:  “As to count 3, which is the [section] 422, again, I find that there were separate objective and intent.   When [appellant] picked up the baby and threatened to inject the baby with the bleach, with the syringe.   Again, the [section] 273.5 is independent from that [section] 422.   It's a separate victim at that point.”.  FN2. The trial court stated:  “As to count 3, which is the [section] 422, again, I find that there were separate objective and intent.   When [appellant] picked up the baby and threatened to inject the baby with the bleach, with the syringe.   Again, the [section] 273.5 is independent from that [section] 422.   It's a separate victim at that point.”

FN3. Appellant does not respond to this argument in his reply brief..  FN3. Appellant does not respond to this argument in his reply brief.

_, P.J. BOREN _, J. DOI TODD

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