People v. Ciauri
| Decision Date | 16 August 2019 |
| Docket Number | B285436 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JON CIAURI, SR., et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
THE PEOPLE, Plaintiff and Respondent,
v.
JON CIAURI, SR. et al., Defendants and Appellants.
It is ordered that the opinion filed August 16, 2019, be modified as follows:
On page 65, lines 10 through 11, the phrase "abstract of judgment" is deleted and replaced with the phrase "minute order";
On page 65, line 11, a period is inserted after the word "sentence";
On page 65, lines 11 through 13, the following language is deleted: "and to forward a certified copy of it to the California Department of Corrections and Rehabilitation";
The modification does not change the judgment.
/s/_________
*MANELLA, P. J.
/s/_________
/s/_________
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA112630-01)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed in part, reversed in part and remanded with directions.
Lori Nakaoka for Defendant and Appellant Jon Ciauri, Sr.
Frederick L. Glasser for Defendant and Appellant Jon Ciauri, Jr.
Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant Joseph Ciauri.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
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Surveillance video captured appellants Jon Ciauri, Sr. and Jon Ciauri, Jr. (Senior and Junior, respectively) jointly beating Armando Cruz at a gas station after Senior started a fight and Cruz fought back. The video further captured appellant Joseph Ciauri (Joseph) accompanying Senior and Junior, standing near Cruz as Senior escalated the confrontation, and remaining in position during the beating. Cruz told the police Senior threatened to kill him and his family if he reported the beating. The state charged all appellants with felony assault and battery and Senior with criminal threats and witness intimidation. Appellants retained attorney Albert Perez to defend all three of them and, after obtaining continuances to seek separate counsel, confirmed their intent to waive any conflict of interest arising from the joint representation. However, on the first day of trial, appellants requested substitution of three new attorneys, two of whom were neither present nor ready to proceed. The court denied their substitution request. At trial, the prosecution relied heavily on the surveillance video. Senior and Junior claimed to have acted to defend Senior from Cruz, and Perez argued Joseph was merelypresent. A jury convicted Senior and Junior of felony assault and battery, convicted Joseph of the lesser included misdemeanor offenses of simple assault and simple battery, and acquitted Senior of the threats and intimidation charges. The court sentenced Joseph to summary probation, imposing conditions prohibiting his possession of deadly or dangerous weapons and authorizing searches of his person and property.
On appeal, all appellants contend: (1) the trial court's denial of their request for substitution of counsel infected their trial with structural error; (2) Perez's conflict of interest in representing all three men prejudiced the trial's outcome; and (3) the trial court's erroneous admission of gang membership evidence further prejudiced the outcome. Senior separately contends: (1) the trial court erroneously admitted evidence that Senior assaulted Cruz's daughter; and (2) the prosecutor committed misconduct during closing arguments. Junior separately contends insufficient evidence supported his convictions because the evidence compelled the jury to accept his "defense of another" defense. Finally, Joseph separately contends: (1) insufficient evidence supported his guilt as an aider and abettor; (2) the weapons and search probation conditions are unconstitutional and otherwise invalid; (3) his conviction for simple assault is invalid because he was also convicted, for the same conduct, of the greater offense of simple battery; and (4) he is entitled to 34 additional days of presentence conduct credit. Respondent disputes all of appellants' arguments exceptJoseph's contentions that we should vacate his conviction for simple assault and award him 34 additional days of presentence conduct credit.
We affirm Senior's and Junior's judgments in their entirety, affirm Joseph's conviction for simple battery, and affirm Joseph's probation conditions. We reverse Joseph's conviction for simple assault and modify his sentence to award him an additional 34 days of presentence conduct credit.
The state charged each appellant with two felonies: assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and battery with serious bodily injury (id., § 243, subd. (d)). It charged Senior with two additional felonies: criminal threats (id., § 422, subd. (a)) and dissuading a witness rom reporting a crime (id., § 136.1, subd. (b)(1)). It alleged appellants personally inflicted great bodily injury (id., § 12022.7, subd. (a)) in committing the charged assault.
The jury convicted Senior on the assault and battery counts and found true the great bodily injury allegation. It acquitted him of making criminal threats and of dissuading a witness. The court sentenced Senior to five years in prison.
The jury convicted Junior on the assault and battery counts and found true the great bodily injury allegation. The court sentenced Junior to five years in prison.
The jury acquitted Joseph on the assault and battery counts but convicted him of lesser included offenses, viz., simple assault and simple battery (both misdemeanors). The court sentenced Joseph to a three-year period of summary probation, with credit for 35 days actually served. It imposed probation conditions forbidding Joseph to "own, use or possess any dangerous or deadly weapons, including any firearms, knives or other concealable weapons"; requiring Joseph to "submit [his] person and property to search and seizure at any time of the day or night, by any probation officer or other peace officer, with or without a warrant, probable cause or reasonable suspicion"; and requiring Joseph to "obey all laws and orders of the court . . . [and] all rules and regulations of the probation department."
Appellants timely appealed.
Appellants retained Albert Perez as their joint defense counsel. They signed a document titled "Conflict Waiver" stating, in relevant part, the following:
Appellants first appeared for arraignment before Judge Thomas A. Falls, approximately eight months before their trial. Junior and Joseph confirmed Perez had explained his potential conflict to them. Due to Junior's and Joseph's intent to seek separate counsel, the court continued arraignment for over a month (from December 22, 2016, to February 1, 2017).
On the first continued date of the arraignment, appellants appeared before Commissioner Wade D. Olson, who presided over all further pretrial proceedings. At Perez's request, for purposes of plea negotiations, the court agreed to continue the arraignment "one last time." The court continued arraignment for over a month (from February 1, 2017, to March 9, 2017).
On the second continued date of the arraignment, the court requested a status update regarding the potential conflict of interest. Perez told the court appellants, unable to separately afford retained counsel, were asking him to represent all three of them. The court stated it would have the public defender and alternate public defender speak with Junior and Joseph, and put the matter over to the end of thecalendar.1 The court continued arraignment for over a month (from March 9, 2017, to April 17, 2017), again deeming it "the last time."
On the third continued date of the arraignment, Perez told the court there was no conflict of interest, and he would represent all three appellants. The court addressed appellants as follows: Senior interrupted the court, stating, Junior and Joseph confirmed they joined Senior in waiving any conflict. The court instructed Perez to submit written confirmation of the waiver. The record includes no subsequent written waiver. After appellants pleaded not guilty to all charges and denied all special allegations, the court set dates for a readiness hearing and jury trial.
Appellants subsequently moved to continue trial due to...
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