People v. Kellersberger
| Decision Date | 03 December 2013 |
| Docket Number | B242632 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JOSHUA A. KELLERSBERGER, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert M. Martinez, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Eric R. Reynolds and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Joshua Andrew Kellersberger was convicted of (1) assault by means likely to produce great bodily injury and (2) hit-and-run driving. On appeal, he challenges the sufficiency of the evidence; the adequacy of trial counsel's representation; a lay witness's opinion testimony; and the fairness of his trial. After reviewing the record, we find no error and affirm the judgment.
On the night of January 20, 2011, friends and relatives attended a birthday party for Quinn Rodriguez (Quinn) at a Glendora restaurant. Among the attendees were defendant Joshua Kellersberger; codefendant Bryan Beljak; Manny and Mary Rodriguez (parents of Quinn); Heather Thomas (girlfriend of Quinn); Eddie Borba; and Emily Wittkop (girlfriend of Borba).1 The victim, Joseph Smith, arrived at the restaurant later and was seated at a different table with two friends.
During the course of the party, tensions arose between Beljak and Smith. As their voices escalated, the men were told to go outside because they were too loud. Smith attempted to calm the situation and apologized. Beljak was agitated and pacing. Mary Rodriguez and Emily Wittkop tried to separate the two men.
According to Wittkop, "Everyone was really intoxicated." Beljak urged Quinn to fight Smith, who had walked away from the restaurant toward his friend's parked car. Quinn pursued Smith and pushed the car door into him as he was about to enter the vehicle. After being struck by the car door, Smith "stepped up to Quinn, and they were about to fight." When Manny Rodriguez grabbed his son in a bear hug, Smith hit Quinn in the face. In return, Quinn knocked Smith over with a punch, and then ran away as other party attendees approached. A melee began, and eyewitness Wittkop was hit in the mouth. There were "a bunch of crazy, drunk people . . . all swinging at each other."
Beljak attacked Smith, punching Smith multiple times in the face. Smith was knocked out and crumpled onto the ground. Once Smith was on the ground, Beljakkicked Smith in the stomach and face some 10 to 15 times. Smith was bleeding from his nose and face. After another partygoer pulled Beljak away from Smith, Smith went to assist a teenaged friend who was fighting with defendant Kellersberger.
Kellersberger and Smith started fighting. Kellersberger punched Smith in the face and kicked him multiple times while Smith was on the ground. Kellersberger raised Smith's head up from the ground by sticking his fingers up Smith's nostrils, and hit Smith in the face with "powerful blows" at least five and possibly more than 10 times.
Wittkop heard Smith scream as he was being beaten by Kellersberger. Smith's entire face was bloodied. Eventually, Manny Rodriguez stopped Kellersberger's attack. Everyone piled into cars and left when they heard police car sirens. Kellersberger seemed dazed when the partygoers met up at the Rodriguez residence to discuss the fight and to wipe blood off of the participants. Wittkop testified that she had a clear memory and was not guessing at her answers to the questions.
Quinn's girlfriend Heather Thomas testified about the events of January 20, 2011. She is a long-time friend of Brian Beljak. Thomas saw Beljak punch one of Smith's friends inside the restaurant, causing words to be exchanged between Smith and Beljak. Thomas and others intervened, and the two men sat down. Smith took a deep breath and seemed fine. Beljak walked outside; when he returned, he was giving hard looks and "flexing" at Smith. Beljak and Smith walked outside.
From inside the restaurant, Heather Thomas saw Beljak and Smith yelling at each other. Some partygoers—including Mary Rodriguez, Emily Wittkop, and Thomas—went outside and tried to stop the two men from fighting. Beljak ignored their pleas for calm and was trying to charge at Smith. Thomas went inside the restaurant briefly to look for Quinn. When she came out, she saw Smith walking toward his friend's car. Thomas advised Smith and his friends that they should leave quickly. She could see the other partygoers coming up behind them.
Thomas heard Beljak tell Quinn that "These guys tried jumping me, fool." Thomas testified that this was a lie, because Smith and his friends did not attack Beljak. In response to Beljak's false accusation, Quinn hustled over to where Smith was standingat the vehicle, even though Quinn's father Manny was trying to say that Beljak lied about being jumped. Thomas held out her hand to prevent Quinn from approaching Smith.
Quinn demanded that Smith come forward. Smith spit at Quinn, who was being held back by his father and Thomas, then struck Quinn with a slap to the side of the face and a push. Quinn pried himself away from those holding him. He hit Smith, who fell to the ground. Quinn hit Smith several times while Smith was on the ground, then Quinn took off running.
Thomas was frightened and entered her car, which was adjacent to the brawl that ensued. She saw Smith charge at and knock down Kellersberger. Smith kicked and punched Kellersberger, who was on the ground curled into a fetal position.
Thomas saw Beljak sock Smith "really hard" in the back of the head. Then Kellersberger hit Smith in the back of the head. Smith dropped to the ground, and Kellersberger Kellersberger struck any part of Smith's body that he could lay his hands on. Smith attempted to get up from the ground during the attack, by grabbing Kellersberger's legs. Kellersberger fell and Smith kicked him multiple times. Manny Rodriguez separated the two. Kellersberger ran away, then returned to the fight and tackled Smith, hitting and kicking him. Smith's head made a thudding noise like a rock hitting the ground when Kellersberger tackled him.
While Smith was on the ground being beaten by Kellersberger, Thomas saw Beljak and Eddie Borba kicking and stomping Smith. She described the attackers as "seriously going crazy" during her taped police interview. At one point, Thomas saw Kellersberger bend over Smith and insert two fingers into Smith's nose while pushing Smith's forehead back with his thumb, "like a leverage to try to rip his nose off." She described it as a "fishhook" maneuver using "a ton of force." Kellersberger struck Smith in the face 10 times during the fishhook maneuver, according to Thomas.
Smith was screaming during the fishhook maneuver. In Thomas's opinion, it sounded "[l]ike somebody was being tortured, like his nose was getting ripped off of hisface, however that would feel, that's how he was screaming." Thomas was so upset watching Kellersberger harm Smith that she started to cry. Manny Rodriguez intervened and pulled Kellersberger's fingers out of Smith's nose. Despite being removed from Smith's nose, Kellersberger began "hitting [Smith] some more and biting him all over his face" and on the neck in "a chomp, chomp, chomp motion." Thomas saw Kellersberger bite Smith five to eight times while shouting profanities at Smith. Thomas saw blood all over Smith's face, hands, clothing and shoes.
While the biting was occurring, the sound of approaching police car sirens could be heard. Kellersberger ceased biting Smith and ran to his parked vehicle, but it was blocked by another car. Thomas saw Kellersberger ram his car twice into the vehicle that blocked his flight from the scene of the brawl. Thomas left before the police arrived.
The driver of the car that was rammed, Pamela Feldstein, testified that her Dodge Stratus was totaled by the impacts. Feldstein could see the "angry face" of a male driver, who took off without providing his name or insurance information. One of the arriving police officers heard the collision and saw a dark-colored Toyota speeding away from the parking lot. At the accident site, Feldstein found green and black car parts and a Toyota emblem, and gave them to the police. At Kellersberger's residence, police found a green Toyota with collision damage. The car parts found by Feldstein matched Kellersberger's vehicle perfectly. When the police arrested Kellersberger on February 2, 2011, his right hand was in a soft cast.
Joseph Smith testified that he went to the restaurant with two friends, to have dinner with the Rodriguez family and their friends. The Rodriguez group included defendants Beljak and Kellersberger. Beljak struck one of Smith's friends, then became enraged when Smith told him to stop. They went outside, and Smith hoped that Beljak would calm down. Instead, Beljak pulled off his shirt and an arm sling and became more aggressive. "At which point," Smith testified, "I walked away."
Smith waited by the car for his friends to pay the restaurant bill. Two minutes later, he was approached by a group, including Quinn. Quinn slapped Smith, while Mr. and Mrs. Rodriguez told Smith to leave, which is what he intended to do in any event.Smith was then blindsided by someone on the right...
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