People v. Guerrero, B187943 (Cal. App. 8/20/2007)
| Decision Date | 20 August 2007 |
| Docket Number | B187943 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. STEVEN GUERRERO and CHARLIE ROYCE KEPHART, Defendants and Appellants. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. LA047140, John S. Fisher, Judge. Affirmed as modified.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Steven Guerrero.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant Charlie Royce Kephart.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz, and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants, Charlie Royce Kephart and Steven Guerrero, appeal from their convictions for battery with serious bodily injury. (Pen. Code,1 § 243, subd. (d).) Mr. Kephart also appeals from his conviction for mayhem. (§ 203.) Mr. Kephart argues: the prosecutor improperly cross-examined Mr. Guererro; the trial court improperly excluded evidence of the violent nature of the victim, Roger Sebastian Kreszchuk; the trial court should have allowed two witnesses to testify as to the effect of a choke hold; the evidence was insufficient; and there was instructional error. Mr. Guerrero raises a sufficiency of the evidence contention and an instructional error argument. Defendants adopt each other's arguments. We affirm.
At approximately 11 p.m. on October 1, 2004, Mr. Kreszchuk was at the Le Cannon bar. Mr. Kreszchuk spoke with Mr. Kephart. Later, Mr. Guerrero motioned to Mr. Kephart. Mr. Guerrero placed his finger to his nose, and said "`We're going to get some.'" Mr. Kreszchuk understood that to mean they intended to purchase cocaine. Mr. Kephart told Mr. Kreszchuk they were going to get cocaine and asked, "`So is that okay with you?'" When Mr. Kreszchuk agreed, Mr. Kephart asked, "`How much are you looking to get?'" Mr. Kreszchuk responded, "`About $20.'" The two men continued to talk in a friendly way.
Approximately 10 minutes later, Mr. Kreszchuk and Mr. Kephart left the bar together. Mr. Kreszchuk drove Mr. Kephart to an apartment complex. They went into an apartment where a woman who seemed to know Mr. Kephart was present. The woman told them: " " Mr. Kephart opened a beer and a large bag of marijuana. The two men smoked marijuana. Thereafter, the woman entered the room a couple of times with her arms crossed over her chest. She appeared to be annoyed with Mr. Kephart.
Mr. Kreszchuk and Mr. Kephart then left the apartment to buy cocaine. Mr. Kreszchuk drove his 1998 Toyota Tacoma truck. Mr. Kephart gave Mr. Kreszchuk directions, which caused them to drive in a "zig-zag[]" pattern. After 10 or 15 minutes, Mr. Kephart directed Mr. Kreszchuk to pull over. Thereafter, Mr. Guerrero drove up in a white Ford Explorer. Mr. Kreszchuk and Mr. Kephart got into Mr. Guerrero's Ford truck. Mr. Guerrero appeared annoyed, hostile, or mad. Mr. Guerrero drove at a high rate of speed on the freeway before exiting at Coldwater Canyon. Mr. Guerrero was drinking a Natural Light beer while driving. Mr. Kephart received a telephone call from the cocaine dealer, who directed them to a meeting point. At approximately 3 a.m., the truck stopped next to an individual on the sidewalk. Mr. Kephart got out of the truck then motioned to Mr. Kreszchuk as if to say: " " Mr. Kreszchuk gave the individual $20. In return, Mr. Kreszchuk received a small package which he put in his breast pocket.
Mr. Kephart then spoke to another person in a low voice while glancing at Mr. Kreszchuk. Mr. Kephart returned to the truck, blocking the door where Mr. Kreszchuk sat. Mr. Guerrero was glaring at Mr. Kreszchuk. Mr. Kreszchuk became frightened. Mr. Kreszchuk reached toward the left door, opened the lock, and walked quickly away from the truck. Mr. Kreszchuk heard someone say, "`Where is he going?'" Mr. Kephart, who was walking behind Mr. Kreszchuk, yelled: " "
Mr. Kephart grabbed Mr. Kreszchuk's shoulder. Mr. Kreszchuk pulled away from Mr. Kephart. Mr. Kephart then punched Mr. Kreszchuk repeatedly in the head. Mr. Kreszchuk returned the blows and wrestled with Mr. Kephart until they both fell to the ground. Mr. Kreszchuk was able to get up and began to walk away. Mr. Kreszchuk heard a car speeding toward him. Mr. Guerrero drove up in his truck and flung open the door. Mr. Guerrero gave chase to Mr. Kreszchuk while yelling: " "
Mr. Guerrero began fighting with Mr. Kreszchuk. Within 10 to 15 seconds, Mr. Kephart joined the altercation. Mr. Kephart pulled Mr. Kreszchuk to the ground. Mr. Guerrero continued to "pummel" Mr. Kreszchuk. Mr. Kreszchuk was repeatedly struck in his head and face. Mr. Kephart had Mr. Kreszchuk in a choke hold. Mr. Kephart then bit off Mr. Kreszchuk's ear. Mr. Kreszchuk heard Mr. Kephart say: " " One of his assailants also bit Mr. Kreszchuk's wrist. Mr. Kreszchuk, who feared for his life, began to yell: " " Mr. Guerrero said: " " Mr. Kreszchuk could barely see because his eyes were swollen. Mr. Kreszchuk hid in a nearby walkway, took off his shirt, and then ran away. Approximately five minutes later, an ambulance arrived. Mr. Kreszchuk was taken to the hospital.
A physician was able to reattach the cartilage of Mr. Kreszchuk's ear but not the earlobe. At the time of trial, Mr. Kreszchuk's ear lobe was missing. Mr. Kreszchuk's watch and key ring were missing after the attack. When he was later interviewed by the police, Mr. Kreszchuk did not tell the officers about the cocaine transaction or driving Mr. Kephart's truck that evening. Mr. Kreszchuk did not want to be cited for driving under the influence. He also did not want the police to look upon him as a "bad person." Mr. Kreszchuk wore a black shirt and pants on the night of the altercation. Mr. Kreszchuk's keys, which included a blue aluminum beer opener, were missing after the attack. They were returned to him from police custody a few days after the attack. Mr. Kreszchuk found a cellular telephone in his truck a few days after the incident. Mr. Kreszchuk believed the telephone belonged to Mr. Kephart and turned it over to Detective Kevin Stogsdill.
Jason Bradley Friedman was awakened at approximately 3 a.m. on October 2, 2004, by yelling outside his window. Mr. Friedman heard someone yell, "`Get his keys,' or `Take his keys.'" Mr. Friedman looked out of his window, which was close to a streetlight. Mr. Friedman saw two people fighting and then realized it was a "two against one" altercation. Mr. Friedman telephoned the police while continuing to watch the fight. Mr. Friedman saw one person on the ground holding an individual wearing a black shirt, while a third man stood over them and may have punched or kicked toward the ground. The man in the black shirt was screaming: "`Help . . . My ear . . . Fire[.]'" Mr. Friedman heard the other individuals say: "`Kick his head,' or, `Kick his face,' . . . and, `Hold him down.'" Shortly thereafter, the two assailants drove away in a car. The third individual got up and moved out of the street. Mr. Friedman viewed the altercation from his third floor window. The altercation took place in the street directly below, which was lit by a nearby streetlight. Nothing obstructed Mr. Friedman's view.
Craig Stillman Edgerly was also awakened by the noise from the fight. Mr. Edgerly heard a man shout, "`You're fucking with your life.'" The same individual then said: Mr. Edgerly heard a different man yell: " . . . " Mr. Edgerly believed the victim's life was at stake. Mr. Edgerly went to the balcony of his second-story apartment and saw a white man enter what appeared to be a white Ford Bronco. The white truck left quickly and swerved over. Mr. Edgerly believed the driver was trying to run over a man who was staggering. Mr. Edgerly believed the driver "wanted to kill" the victim. The man who was staggering appeared to be in pain. Mr. Edgerly could see blood on the sidewalk directly under the street light. Nothing obstructed Mr. Edgerly's view. A police car arrived immediately thereafter.
Los Angeles Police Officer Stephen Ohlrich was on patrol at approximately 3:15 a.m. on October 2, 2004, in the vicinity of Moorpark and Hazeltine Streets. Officer Ohlrich saw a silhouette of a dark shadow in the middle of the street approximately 500 feet from his police car. Officer Ohlrich saw two individuals stand up and walk northbound to what was later verified to be a Ford Explorer. The two men got into the Ford. The Ford accelerated in a "U-turn fashion." The Ford made a half U-turn and was directed towards the victim. Officer Ohlrich then pursued the Ford. Officer Ohlrich's partner, identified only as Officer Sandoval, checked the motor vehicle records on the computer for warrants and the name of the registered owner. During that time, the officers received a radio call regarding a robbery in the area.
After requesting assistance, Officer Ohlrich was able to stop the Ford in a nearby strip mall. Mr. Guerrero, who was driving the Ford, wore a "whitish" blue shirt, and gray pants. Mr. Kephart, the passenger in the Ford, wore: a blue shirt; blue pants; and white and blue shoes. Officer Ohlrich ordered the two men out of the Ford. Officer Ohlrich noticed a 12-pack box containing numerous cans of beer on the floorboard of the front passenger area. Officer Ohlrich also noticed several open beer cans on both the front...
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