People v. Barajas

• Decision Date: 31 October 2012
• Docket Number: F063330
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL BARAJAS, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL BARAJAS, Defendant and Appellant.

F063330

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Dated: October 31, 2012

CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF133193A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge.

C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Miguel Angel Barajas stands convicted, following a jury trial, of battery resulting in the infliction of serious bodily injury (Pen. Code,¹ § 243, subd. (d)). He was acquitted of drawing or exhibiting a firearm in a threatening manner (§ 417, subd. (a)(2)), a misdemeanor. His request for probation was denied, and he was sentenced to two years in prison and ordered to pay restitution, as well as various fees, fines, and assessments. On appeal, defendant claims the trial court misinstructed the jury, and that various sentencing errors occurred. We affirm.

FACTS

IPROSECUTION EVIDENCE

On July 24, 2010, Adrian Perez was the assistant manager at a clothing store in Bakersfield.² When his shift ended that evening, he walked to his vehicle, which was in the store's parking lot. He did not hear anyone approach or say anything to him. As he put his key in the car door, however, defendant attacked him from behind, "smash[ing]" Perez's face into the car window and putting him in a choke hold. When Perez tried to break out of the choke hold, defendant flipped him over a metal railing next to the vehicle, causing Perez to land on his back. Defendant then retrieved a firearm from his pants and pointed it at Perez's face. Perez started yelling for help. Defendant put the weapon back into the back of his pants and started kicking Perez in the face and ribs. Perez curled up in a fetal position, whereupon defendant started stomping downward on the top of Perez's spine and lower back.

Perez was kicked multiple times in the head, causing him to black out for 10 to 15 seconds. When he came to and tried to get up, defendant kept kicking him. Perez finally tried to run away, losing a shoe in the process, only to have defendant attack him againon the other side of the parking lot. The attack finally ended when some of Perez's coworkers saw what was happening. They encircled Perez; when defendant tried to break through them to get to Perez again, one of them pulled Perez back into the store. At no time during the incident did Perez strike back at defendant. Perez was "pretty much helpless" and never had a chance to defend himself.³

Perez was bleeding from his face, mouth, forehead, and top of his head. He had a lot of pain to his left rib cage and shortness of breath. At the hospital, it was determined he had suffered a rib fracture on the left side, a bruised lung, and mild hemothorax, meaning bleeding within the chest. He was hospitalized for four days. As of the time of trial, about a year later, he still had pain from his neck down to his lower back.

Defendant turned himself in on July 26, after learning the police were looking for him. He waived his rights and gave a statement to Officer Escobedo. Defendant related that he had gone to the store to speak with his ex-girlfriend, Cindy Lopez, about taking their child to Los Angeles. As he was walking through the parking lot, defendant saw Perez, who gave him a sarcastic smile. This enraged defendant because of what he believed had happened between Perez and Lopez, and so he approached Perez, wanting to fight him. Defendant said after seeing the smile, he let his emotions get to him. Defendant was so enraged, he blacked out and could only remember bits and pieces of the fight.

Defendant was very cooperative with Escobedo, and expressed remorse for what took place. However, he denied owning or having a firearm.⁴

II

DEFENSE EVIDENCEBulmaro Gonzales was defendant's stepfather. On July 24, the two were together all day, working on a project in defendant's garage. When Gonzales left a little after 7:00 p.m., defendant was happy. Defendant said he was going to see his baby's mother so he could take the child to Los Angeles. He said nothing about confronting anyone at her work.

Lopez was the mother of defendant's child. She and defendant broke up in March or April, but, as of July, were trying to work things out. Perez was Lopez's manager at work. They had a single sexual encounter in April, during the time Lopez and defendant were not together.⁵ Lopez told defendant about having sex with Perez, whose picture was on her MySpace page. It upset defendant and made him mad.

During July, defendant and Lopez had a cooperative relationship in terms of his visiting with their child. Prior to July 24, however, he had never stopped by her work. That day, she did not recall whether she had any missed calls from defendant on her cell phone. The first she knew something unusual had happened was when security called her outside. She saw Perez standing in front of the store, and security holding defendant perhaps 35 feet away. Nobody was holding Perez, although there were people between him and defendant. Perez and defendant were telling each other, "Come on," essentially challenging one another to fight. Neither man appeared to Lopez to be injured.

Lopez lived with defendant for three years. He did not own a pistol.

Defendant testified that on July 24, he was at his house all day, working on a project with his stepfather. His plans were to go to an AA meeting between 7:00 and 9:00 that evening, go to work at 10:00, get off at 2:00 a.m., pick up his daughter, and go to Los Angeles. As of that time, defendant and Lopez were trying to work things out.She had told defendant about her sexual encounter with Perez about a week after it happened. Defendant, who was shocked and emotional over her admission, had never met Perez, but had seen his photographs on MySpace. When defendant found out in April, he made no attempt to contact Perez. Rather, he started going to a church group and AA meetings to have people with whom he could talk.

On July 24, defendant went to the store, intending to ask Lopez whether, since he got off work at 2:00 a.m., she could have their daughter's bags ready so he could pick her up and head to Los Angeles. He was a little nervous, since he had been trying to avoid being anywhere around the store, but Lopez was working and defendant knew she would not answer her phone. He did not have a handgun with him and was not intending to fight or attack anyone.

When defendant arrived at the parking lot, he looked to see if he recognized anyone who could go inside and call Lopez out. Not seeing anyone, he waited by his car for a bit, then decided to go inside. As he was walking toward the front door, he fortuitously encountered Perez, who was walking out. They locked eyes, and Perez kind of started smirking and giving defendant "a certain look." They passed each other, then, when they were about four feet apart, defendant asked if Perez knew who he was. Perez started laughing. He kept ignoring defendant, and then he turned away.

Defendant felt there were things that had to be said, and that Perez owed defendant an explanation or apology, so he decided to turn Perez around. When defendant touched Perez's left shoulder, Perez struck at defendant with his elbow or hand and almost hit defendant in the face. He missed because defendant moved back, then defendant pushed him and they started exchanging punches. Defendant estimated striking Perez three times in the face and four or five in the body, while Perez's punches "landed in random places."

Perez fell down from one of the hits and rolled under a place for shopping carts. Perez started saying he was going to go and get his cousin. He was using profanity and calling defendant names. Defendant tried to kick him, but did not connect. Once Perezwent to the ground, there was no more physical contact between the two men, although when Perez started running to the store, defendant chased him. That was when the security guard and others came. Once the security guard started walking toward him, defendant just stopped and stood there. The security guard bear-hugged defendant, while Perez kept "talking crap." Perez acted like he wanted to fight, so defendant told him, "Okay, let's go."

At no time did defendant point anything at Perez or have anything in his hands. At the end of the fight, Perez was holding his side when he was talking, but defendant did not see any blood on him. Defendant did not feel he was defending himself, but believed it was a mutual fight.

Defendant regretted that Perez was hurt. It was never his intention to hurt Perez.⁶Defendant was in Los Angeles when he learned the police were looking for him, and he turned himself in upon his return. He admitted lying to the police about blacking out from anger; he had never been in trouble with the law and did not want to talk about the situation, but at the same time did not want to be someone who asked to speak to a lawyer. He had heard rumors that if the police thought someone did something, they would keep at the person until he or she admitted it. Defendant did not "want to go down that route," and felt like saying he blacked out was the easiest way out.

DISCUSSION

ICALCRIM No. 361

The conference on jury instructions was not reported. Insofar as the record shows, defendant did not object to the giving of CALCRIM No. 361, pursuant...