People v. Pauldo
| Decision Date | 15 March 2021 |
| Docket Number | B304703 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. BUDDIE L. PAULDO IV, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA476449)
APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Affirmed.
Jack T. Weedin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.
Buddie L. Pauldo IV appeals the judgment entered after a jury convicted him of assaulting Fermin Rivera. Pauldo contends his conviction should be reversed for evidentiary and instructional error and prosecutorial misconduct. We affirm.
Pauldo was charged in a first amended information with assault with a deadly weapon, identified as a "golf club/metal stick," (Pen. Code, § 245, subd. (a) (1))1 (count 1) and making a criminal threat (§ 422, subd. (a)) (count 2)). The amended information also specially alleged as to the second count Pauldo had personally used a deadly or dangerous weapon when committing the offense (§ 12022, subd. (b)(1)).
The People's theory of the case was that Pauldo, without provocation, verbally accosted Rivera and then assaulted Rivera with a golf club. Pauldo, who testified in his own defense, claimed Rivera and his wife, Aida Aguilar, were the aggressors and he had only responded to Rivera's attack in self-defense.
On the morning of March 25, 2019 Rivera and Aguilar were setting up the food truck that Aguilar operated on Hollywood Boulevard, an area visited by many tourists. Rivera observed Pauldo a few storefronts down, smoking with another person. Rivera left at 11:00 a.m. to run errands. Aguilar observed Pauldo, whom she had seen smoking marijuana throughout that day, talking to himself, making gestures and appearing angryand aggressive. She once saw him push and kick people in their backs as they walked by.
Rivera testified he returned from his errands at 2:00 p.m. and saw Pauldo standing at the corner, holding a blade in one hand and a piece of metal in another. Pauldo put both objects in his pockets and angrily asked if Rivera was staring at him and if Rivera "was a bitch." Although Rivera repeatedly told Pauldo he "didn't want any problems," Pauldo, continuing to use foul language, approached Rivera. The two argued for a few minutes, and Pauldo punched Rivera near his ear. Tourists separated them, and Rivera started walking away, toward the truck.
Pauldo, calling Rivera "a little bitch," yelled at Rivera to come back and then pursued him. Pauldo grabbed a stool on the side of a tour booth and threw it at Rivera, who caught it and placed it on the ground. Pauldo had a golf club in his hands. Swinging the golf club like a baseball bat, Pauldo tried to hit Rivera. To shield himself, Rivera held up the stool that had been thrown by Pauldo. The golf club hit the chair. Pauldo swung the golf club three times downward at Rivera, each time hitting the stool. The club broke on the third swing, and the severed piece made contact with Rivera's back as it fell to the ground.
Others intervened. Rivera walked away from Pauldo toward the truck, but Pauldo followed along in the street insulting him. Rivera stopped in front of a luggage store, which had two sets of doors, an exterior metal garage door and an interior glass-framed door. When Pauldo came toward him from the road onto the sidewalk, Rivera backed into the interiorentrance of the store. Pauldo continued to yell insults at Rivera and told him to get outside.
Pauldo then charged at Rivera into the store while holding a metallic object with at least a three-inch point protruding from his hand. As Rivera tried to cover himself with his forearm, Pauldo scratched him with the metal object, causing two small cuts, one on Rivera's arm and another on his face, near a tear duct. Rivera took a step back, tripped over luggage and fell onto his back. Pauldo fell on top of him. Pauldo punched Rivera repeatedly in the face and several times in the chest and arm as Rivera tried to push Pauldo away. Suddenly Pauldo stood up and left Rivera, who was bleeding profusely on the carpet. When Aguilar went to Rivera, Pauldo, who by then was again out on the street, called her a bitch and a prostitute and threatened to go and bring his sister to beat her. Rivera also heard Pauldo tell another person he was going to return and kill Rivera and Aguilar.
In her testimony Aguilar confirmed that Pauldo swung a golf club at Rivera and, when Rivera blocked it with the chair Pauldo had thrown, the golf club broke. Aguilar also testified she went inside the luggage store when Rivera was lying on his back with Pauldo on top of him. To frighten Pauldo into leaving Rivera and to defend herself, Aguilar pulled out a kitchen knife she used for her work. Pauldo turned, saw Aguilar with the knife in her hands, got up and ran outside. During the entire incident Pauldo was screaming, including that he was going to kill Rivera and Aguilar.
John Mashian, the owner of the luggage store, testified he heard yelling, stepped outside and saw Pauldo holding a golf club above his head and Rivera holding a stool in front of his body.Believing someone would get hurt, Mashian called the 911 emergency operator to report a fight. As Mashian was talking on the phone, Pauldo and Rivera walked toward his store. Pauldo and Rivera no longer had the golf club or chair. Mashian heard Pauldo say to Rivera, "I'm going to mess you up." Rivera reached the front of Mashian's shop, an open space with a large garage door entrance, and Pauldo was a few feet away from Rivera on the sidewalk. Mashian saw Pauldo rush at Rivera into the store. Rivera fell on his back inside the shop. Pauldo moved on top of Rivera, punching him in the face and upper body. Pauldo appeared angry and agitated. Others, including Aguilar, came into the store to pull Pauldo off Rivera. Pauldo went outside, still upset and agitated, and paced back and forth in the street.
The audio recording of Mashian's 911 call was played for the jury. As Mashian was explaining that Pauldo "has got a big . . . metal golf thing," Pauldo could be heard in the background saying, "I'm about to fuck you up!," immediately followed by "You're not leavin' bro" and Pauldo later stated, "I'm gonna dead clock you son." Pauldo also yelled, Mashian then exclaimed, Sometime later Aguilar spoke. Her statements included (as translated from the original in Spanish) and "[C]all the police." Mashian stated,
Pauldo, although admitting he had been smoking marijuana, denied talking to himself, making hand gestures or kicking or pushing anyone who walked by him. Describing hisfirst contact with Rivera, Pauldo said he had been leaning against a pole when, feeling a presence near him, he turned and discovered Rivera standing behind him. Pauldo denied having any knives or anything metal on him at the time. Pauldo asked Rivera what he was looking at. Rivera pulled out a switchblade, which was closed at the time, and responded, Pauldo asked why Rivera pulled a knife on him and told Rivera to "fight [him] like a man." Rivera said some words, including "Shut the fuck up." While Pauldo and Rivera were arguing, Aguilar tried to pass Rivera a butcher knife, but Rivera did not take it.
Pauldo intended to "let [the situation] go," but Rivera took a swing at him. Although Pauldo blocked Rivera's punch, it grazed Pauldo's head. Rivera opened his switchblade and slashed Pauldo's shoulder. Rivera then grabbed a golf club from the front of a store and swung it at Pauldo. Rivera hit Pauldo one time on the head with the golf club. Pauldo blocked a second swing with his hand. Pauldo managed to take the club from Rivera. As he did, Rivera picked up a bar stool. Pauldo and Rivera swung at the same time. The golf club and the stool hit each other, and the golf club broke. Rivera picked up the broken golf club and used it to slice Pauldo on his back and stab Pauldo on his right shoulder. In response Pauldo "kneed [Rivera] in the stomach," and Rivera fell back. Pauldo got on top of Rivera to prevent him from using the golf club and punched Rivera twice in the face. Aguilar then approached the men with a knife, but Rivera did not take it.
Pauldo ran around Aguilar and out of the store, walked across the street and stayed in the area. He did not call 911 because a police car had been across the street the entire time and he assumed the police were aware of what had happened.
Pauldo testified he felt a sharp pain when Rivera had hit Pauldo's hand with the golf club and his hand had been swelling. When asked about another witness's trial testimony that his medical records had indicated no visible swelling, Pauldo replied, "They probably just missed it." When asked whether there was any bruising or swelling to his head when the golf club had hit it, he replied, "I got braids, so—," and explained his braids "proba...
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