People v. Torrez
| Decision Date | 03 May 2022 |
| Docket Number | A161474 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. BRYAN TORREZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(City & County of San Francisco Super. Ct. No. 232575)
Bryan Torrez appeals from a judgment of conviction and sentence imposed after a jury found him guilty of misdemeanor assault and battery (Pen. Code, §§ 240, 242).[1] He contends (1) the court erred in precluding expert witness testimony to support his unconsciousness defense; (2) the prosecutor committed misconduct in asking a character witness about a purported arrest of the defendant for attempting to break into cars, because the arrest was actually for resisting a police officer; and (3) the sentencing minutes should be corrected so that he does not have to pay the fees and assessments imposed at sentencing or a $25 fee under section 1463.07. We will order a correction of the sentencing minutes and affirm the judgment.
Torrez was charged in Count 1 with assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) and in Count 2 with battery with serious bodily injury (§ 243 subd. (d)). As to Count 1, it was alleged that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and as to Count 2, it was alleged that he personally inflicted serious bodily injury (§ 1192.7, subd (c)(8)). The matter proceeded to trial.
Zachary Davidson testified that he was walking on Pine Street toward Mason Street in San Francisco around 4:30 p.m. on January 26, 2020, looking down as he unwound his headphones. When he looked up, he saw a man (Torrez) 10-15 yards away, staring at him intensely. Davidson tried to walk around Torrez, but Torrez stepped in front of him, blocking his way and causing him to stop.
Torrez slowly took off his jacket, put the jacket and his bag on the ground, and "siz[ed] [Davidson] up." He then "bull-rushed" Davidson, who felt a blow to the right side of his head as he turned to get away. Torrez hit Davidson two or three more times as Davidson tried to run between parked cars and into the street. He threw Davidson down to the sidewalk and continued striking him in the face. Davidson, who had never seen Torrez before, screamed "help," "what the fuck is wrong with you?" and "why are you doing this?"
Someone yelled at Torrez to stop, and he stopped. Torrez got off Davidson, picked up his bag and jacket, and slowly walked away, turning left on Mason Street. Torrez did not say anything to Davidson during the incident, which lasted about 60 seconds.
Davidson called 911 and reported the attack; a recording of the call was played for the jury. He also described the attack to police when they arrived at the scene.
Davidson was taken to the hospital by ambulance. He suffered five to seven "strike marks" or swollen areas on his lip, chin and the right side of his eye and face, his nose was fractured, he sustained cuts on his forehead, scrapes on his ankle, and two black eyes, and he had pain in the back of his head. For a few days, he suffered from headaches and blurred vision.
Officers Jason Nord and Javier Elizondo arrived at the scene. Officer Nord activated his body-worn camera. Portions of the recorded video, showing Davidson on the street speaking with the officers about the attack, was played for the jury.
Bystanders informed police that the suspect was nearby and led Officer Nord around the corner and up a block on Mason Street to California Street, where one of the bystanders pointed to Torrez near a movie set. The officers detained Torrez, who did not resist being handcuffed. Torrez cooperated with Nord, followed his commands, and responded to questions about his name and date of birth.
Officer Nord took a statement from Davidson and witnesses who had seen the attack. Davidson was able to view Torrez from the back of the ambulance and identified Torrez as his assailant.
At the police station, Torrez appeared subdued and fell asleep on a bench. After being advised under Miranda, Torrez declined to speak to Officer Nord. There were no indications that Torrez was under the influence of drugs or alcohol.
Officer Elizondo identified Torrez in the courtroom as the person he and Officer Nord located on California Street and arrested after the assault. Portions of the video footage from Elizondo's body-worn camera were played at trial. According to Elizondo, Torrez was at times uncooperative, refusing to stand up for a "coldshow" and to be transported. Torrez told Elizondo to leave him alone and did not respond when repeatedly asked if he needed help.
Patrick Reynolds testified that he was in his apartment when he heard someone screaming, "[h]elp," "stop." He looked out the window and saw a man lying on his back and a person standing over him, hitting him repeatedly in the face. At trial, Reynolds identified Torrez as the assailant.
Torrez had a "wild crazy look in his eyes." Reynolds and his husband screamed for Torrez to stop; Torrez stopped, looked up at them, and returned to beating the victim. Reynolds ran downstairs; by the time he reached the street, another man was next to the victim and Torrez had ceased his attack. Torrez picked up his bag and casually walked away. After police arrived, Reynolds and another neighbor ran with the officers up Mason Street, where Torrez was spotted on the corner of Mason and California Streets and apprehended. Torrez's demeanor at the time was subdued.
On the day of the incident, Jim Morrone was returning from a corner store on Pine and Taylor Streets when he heard someone repeatedly say in distress, "Stop, stop," "why are you doing this?" Morrone walked toward the noise and heard an upstairs neighbor yelling from his window for the assailant to stop. Morrone observed the victim curled up on his side on the sidewalk and another person dancing around him like a boxer and kicking him. The victim's face was cut and covered with blood. Morrone told the assailant to back off; the assailant backed up a couple of feet and moved his hands back and forth in a boxing motion. After sizing up Morrone for a minute, the assailant walked down the sidewalk, picked up his backpack, and walked away quickly toward Mason Street. Police officers arrived within minutes, and Morrone told them the direction the assailant had gone. Morrone jogged with the police to find the attacker, who was observed at the top of a hill where a show was being filmed. Morrone told police, "[t]hat's him," and they made their arrest.
Abigale Nowak was walking home when she saw a person lunging at another person and latching on to him. The victim said loudly, "get off me, get off me." The assailant rammed the victim into a parked car and shoved him into a window. Nowak called 911. The victim fell to the ground, and the assailant kicked him as he wailed on the ground in pain. After neighbors tried to help, the assailant jogged up the hill on California Street, appearing "amped up and angry," and sat down at the top of the hill, where a movie was being filmed.
Torrez testified that he learned his girlfriend was pregnant and went "several days without sleeping." Beginning the day his girlfriend gave him the news, he slept less than four hours a day and, at some point, was not sleeping at all. He did not identify the days he had no sleep.[2] As to the events of January 26, 2020, Torrez testified that he remembered a man (Davidson) walking towards him from a block away. Torrez moved from one side of the street to the other several times, and Davidson did the same thing, moving when Torrez moved. When they were a few feet apart, Davidson made a gesture or movement that Torrez interpreted as a threat to attack or frighten him-he believed Davidson had raised his fists at shoulder height and jerked forward. Torrez recalled chasing Davidson around a car, hearing someone screaming for him to stop, and seeing a person in front of him with his hands up. He claimed not to remember hitting or kicking Davidson or seeing other people approach. He did remember picking up his bag and leaving in the direction he had come from. Initially he testified that he did not remember anything after that, but he later testified that he remembered seeing a crowd and the police handcuffing him and putting him in the police car.
Torrez denied having taken drugs or consuming alcohol. When asked on cross-examination, "right now you're currently on probation in Alameda County; is that right," Torres replied that he "wasn't aware" of it.
Torrez's father and brother testified to his character. His father, Felax Hernandez, testified that his son was very peaceful and nonviolent, always studying and reading books, and had a peaceful reputation in the community. Hernandez further testified that he considered Torrez an honest person with a reputation for honesty in the community.
On cross-examination, the prosecutor asked Hernandez if he was aware that Torrez had a conviction for theft in Alameda County in 2019. Hernandez responded that he believed Torrez's girlfriend was responsible for that incident and Torrez blamed himself for what happened. The prosecutor also asked Hernandez-in a question at issue in this appeal-whether Hernandez had heard that Torrez was arrested in December 2019 for "allegedly trying to break into cars in Alameda." The court overruled defense counsel's objections, and Hernandez replied that he "wasn't aware of that." The prosecutor asked no...
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