People v. Hinojosa

BENDIX, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PA092369) APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Terrell, Judge. Affirmed. Jason M. Howell, 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, Assistant Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

Defendant Edgar Hinojosa was convicted of one count of assault by means of force likely to produce great bodily injury and one count of battery with serious bodily injury. The jury also found that in committing the assault, Hinojosa personally inflicted great bodily injury upon the victim. The trial court suspended imposition of the sentence and placed Hinojosa on five years' probation on the condition that he serve 365 days in county jail.

Hinojosa's convictions arise out of a physical confrontation he had with S.M., one of his neighbors. On appeal, Hinojosa claims the trial court erred in instructing the jury that he did not have the right to use self-defense if he provoked a fight or quarrel with the intent to create an excuse to use force. He argues that although he may have initiated the altercation with S.M., there was a two-minute pause in the fighting before he landed a blow on S.M., and, at that time, Hinojosa hit S.M. only after he raised his right fist toward Hinojosa.

We reject Hinojosa's claim of instructional error because video surveillance and other evidence in the record could have led a rational jury to find that even after the two-minute pause, Hinojosa intended to keep attacking his neighbor and to use force if S.M. defended himself. Specifically, the People offered evidence showing that shortly after S.M. emerged from his initial brawl with Hinojosa, Hinojosa pursued S.M. on foot, yelled "Where are you going?" and got very close to his neighbor before S.M. raised his fist and Hinojosa punched S.M. in the face, knocking him unconscious. Finding no error, we affirm the judgment.

PROCEDURAL BACKGROUND

On September 12, 2019, the People filed an information charging Hinojosa with one count of assault by means of force likely to produce great bodily injury, in violation of Penal Code section 245, subdivision (a)(4); and one count of battery with serious bodily injury, in violation of section 243, subdivision (d). The information further alleged that in the commission of the assault by means of force likely to produce great bodily injury, Hinojosa personally inflicted great bodily injury upon S.M. within the meaning of section 12022.7, subdivision (a). Hinojosa later pleaded not guilty to both counts.

Undesignated statutory citations are to the Penal Code.

Before submitting the matter for decision, the trial court read CALCRIM No. 3472 (contrived self-defense instruction) to the jury, which provides: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." (See People v. Eulian (2016) 247 Cal.App.4th 1324, 1326, 1333 (Eulian) [referring to CALCRIM No. 3472 as the contrived self-defense instruction].)

On January 31, 2020, the jury found Hinojosa guilty on both counts, and found true the allegation that Hinojosa personally inflicted great bodily injury upon S.M. within the meaning of section 12022.7, subdivision (a). On February 10, 2020, the trial court suspended the imposition of sentence, and placed Hinojosa on probation for five years on the condition that he serve 365 days in county jail. On April 1, 2020, Hinojosa timely appealed the judgment.

FACTUAL BACKGROUND

We summarize only those facts relevant to this appeal.

1. The People's Evidence

At trial, the People called S.M. to the stand and showed the jury People's exhibit 12, which is a surveillance video depicting the confrontation between Hinojosa and S.M.

S.M. testified that at approximately 5:40 a.m. on January 31, 2019, he was leaving his apartment to go to work when his neighbor, Hinojosa, confronted him and complained of the noise that S.M. had made the night before. S.M. turned to Hinojosa, and told him that they would talk later and that S.M. needed to go to work. Hinojosa then pushed S.M., and S.M. dropped his keys, his cellular telephone, and his coat. S.M. bent down to pick up his belongings, and then "hugged" Hinojosa and leaned him up against a fence.

The remainder of this paragraph and the following four paragraphs summarize pertinent aspects of S.M.'s testimony. --------

Hinojosa's wife asked S.M. to let Hinojosa go, but S.M. refused because he believed that Hinojosa wanted to hit him. After S.M. released Hinojosa, Hinojosa attempted to punch S.M. with a closed fist, but S.M. successfully evaded the punch by moving backwards.

Hinojosa, Hinojosa's wife, and S.M. then argued for approximately two minutes about the cause of the noise issue. S.M. insisted that he needed to go to work, and turned to leave. Hinojosa yelled to S.M., "Where are you going?"

S.M. responded by turning around, and, as he noticed that Hinojosa was getting close to him, S.M. raised his right arm. At that point, S.M. "felt a very strong punch between [his] ear and [his] jaw bone." The impact knocked S.M. unconscious for a moment and caused S.M. to fall to the ground. Hinojosa then choked S.M. with his arm for approximately 15 to 20 seconds and left the scene.

As S.M. stood up, he felt dizzy and confused, and realized that his nose was "pulsating." Later that day, S.M. went to a hospital to receive treatment for his injuries. Hinojosa concedes S.M.'s medical records "indicated that he sustained a nose fracture." (See also Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal) [" '[B]riefs and argument . . . are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party. [Citations.]' "].)

Hinojosa of the video confirms, that People's exhibit 12 depicts the following: After S.M., Hinojosa's wife, and Hinojosa had their conversation following the initial altercation between S.M. and Hinojosa, S.M. turned away and walked up a sidewalk; Hinojosa walked up behind S.M.; S.M. turned around and raised his fist in front of him toward Hinojosa; and, several seconds after S.M. raised his fist, Hinojosa punched S.M. (See also Artal, supra, 111 Cal.App.4th at p. 275, fn. 2.) Our review of this exhibit also reveals that Hinojosa was in close proximity to S.M. when S.M. turned toward him and raised his fist, S.M. lowered his fist several seconds before Hinojosa punched him, and S.M. fell to the ground after Hinojosa struck him. Because of the camera angle and the lighting of the video, it is difficult to discern from the footage other parts of the confrontation, including the events transpiring after S.M. fell to the ground.

2. The Defense's Evidence

Hinojosa and his wife testified for the defense. Hinojosa's wife testified that on the morning of the incident, Hinojosa was waiting for his boss outside their apartment. Hinojosa and his wife testified that when Hinojosa tried to speak with S.M. that morning, S.M. pushed Hinojosa up against a fence, pressed his knee into Hinojosa's stomach, and touched Hinojosa's ear. Hinojosa claimed that he has a tumor in his ear, and that, as a result, he suffers pain when someone touches it.

Hinojosa's wife testified that after S.M. had released Hinojosa, Hinojosa started walking towards where his boss was waiting for him. She asserted that S.M. then told Hinojosa they would "see each other again, son of a bitch." Hinojosa's wife claimed her husband replied, "We don't have a reason to see each other."

Hinojosa testified that he thereafter hit S.M. because he thought S.M. was going to punch him with a raised fist. Hinojosa asserted that the two men both fell, S.M. hit Hinojosa, and Hinojosa grabbed S.M.'s hands to prevent S.M. from continuing to hit him. Hinojosa and his wife denied that Hinojosa had choked S.M. Hinojosa testified that after he grabbed S.M.'s hands, Hinojosa got up and went to his boss's vehicle.

DISCUSSION

"On appeal, we presume that a judgment or order of the trial court is correct, ' "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." ' [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 666.) " 'A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof.' [Citation.]" (People v. Stinson (2019) 31 Cal.App.5th 464, 476.) "In making this determination, we view the evidence most favorably to the judgment presuming the existence of every fact that reasonably may be deduced from the record in support of the judgment. There is no instructional error when the record contains substantial evidence in support of a guilty verdict on the basis of the challenged theory. [Citation.]" (People v. Jantz (2006) 137 Cal.App.4th 1283, 1290.)

Hinojosa argues the trial court erred in issuing the contrived self-defense instruction because "it interfered with the jury's resolution of the key issue in the case, which was whether [Hinojosa] acted in self-defense after the initial confrontation was over in response to [S.M.'s] raised fist." Hinojosa asserts "the video evidence clearly shows [S.M.] make the first physical threat following the two-minute conversation [between S.M., Hinojosa's wife, and Hinojosa] by raising his fist at [Hinojosa]." Hinojosa maintains that "[w]hile [he] may have initially confronted [S.M.] over the noise in his apartment, there was no showing that [Hinojosa] intended to provoke a confrontation in order to use self-defense at the time he punched [S.M.]" We disagree.

As we noted in Factual Background part 1, ante, Hinojosa concedes, and our independent review confirms, that the surveillance video shows that: Hinojosa walked behind S.M. after S.M. had turned and walked away from Hinojosa; S.M. then turned around and raised his fist; and Hinojosa punched S.M. seconds after S.M. raised his fist. The video also shows that S.M. turned toward Hinojosa and raised his fist only after Hinojosa followed S.M. and got near him, and that S.M. lowered his fist shortly before Hinojosa hit him. Furthermore, S.M. testified that he turned because Hinojosa had yelled, "Where are you going?"

Viewing this evidence in the light most favorable to the judgment, one could reasonably find that S.M. lifted his fist in response to Hinojosa's aggressive conduct, to wit, Hinojosa approached S.M. from behind, yelled at S.M., and got quite close to S.M. approximately two minutes after the men had a scuffle. Under these circumstances, Hinojosa "did not have the right to use force to settle a physical confrontation he arguably created," and his "conduct . . . provide[d] a factual predicate for instructing" the jury on the principles of contrived self-defense. (See Eulian, supra, 247 Cal.App.4th at pp. 1333-1334; cf. ibid. [holding the trial court did not err in providing a substantially similar version of this instruction because the jury could have determined that the victim engaged in physically threatening behavior "in response to [the] defendant's aggressive conduct"—i.e., the defendant had "screamed and jabbed his finger repeatedly in [the victim's] face" and "continued to argue with [the victim] and gesture toward her, even as [the defendant's] mother tried to pull him away"].) Put differently, a rational jury could infer that Hinojosa was the one who provoked a fight or quarrel, and that Hinojosa intended to use violence against S.M. if he defended himself. Indeed, the footage showing Hinojosa hit S.M. after S.M. lowered his fist suggests Hinojosa was the only aggressor at that juncture.

Because Hinojosa fails to establish error, we need not reach the Attorney General's argument that Hinojosa forfeited his appellate claim or Hinojosa's contention that he was prejudiced by the contrived self-defense instruction.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

BENDIX, J. We concur:

ROTHSCHILD, P. J.

CHANEY, J.