People v. Yuriar CA2/1 ( 2021 )

Filed 6/30/21 P. v. Yuriar CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306024
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA121893)
v.
JOSE GERARDO YURIAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura F. Priver, Judge. Affirmed.
Erica Gambale, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Jose Gerardo Yuriar challenges his conviction
for assault with a deadly weapon. His principal argument is that
the trial court erred in excluding evidence that the victim and an
eyewitness requested a form to apply for an immigration visa
available only to victims of certain crimes and certain family
members of those victims, and requiring certification from a
certifying agency, which includes a prosecutor. Defendant
asserted the evidence was relevant to demonstrate the victim’s
and eyewitness’s motive to shade their respective testimony to
please the prosecutor. The trial court excluded the evidence
under Evidence Code section 352.
We conclude the trial court did not abuse its discretion in
excluding the evidence because the inference of motive was weak
and the admission of the evidence would have been unduly
prejudicial given the prospect of juror bias against undocumented
immigrants. We also reject defendant’s challenge based on the
sufficiency of the evidence to the jury’s true finding of the great
bodily injury enhancement. Finally, we reject defendant’s
argument that the trial court erred in instructing the jury that
defendant’s flight may be evidence of consciousness of guilt.
Accordingly, we affirm the judgment.
BACKGROUND
We set forth here background facts and a general
description of the proceedings below. We describe additional
facts and proceedings relevant to the issues addressed in our
Discussion.
A jury convicted defendant of assault with a deadly weapon
and found true a great bodily injury enhancement. (Pen. Code,
§§ 245, subd. (a)(1) & 12022.7, subd. (a).) The jury acquitted
defendant of two counts of committing criminal threats.
2
Defendant admitted that he suffered a prior conviction for second
degree robbery. The trial court found the prior robbery conviction
true and that the robbery conviction fell within Penal Code
sections 1170.12; 667, subdivision (a); and 667, subdivision (b).
The trial court sentenced defendant to prison for nine years,
which included three years for the great bodily injury
enhancement.
On August 28, 2019, defendant approached the truck where
Estrada and his father Mendez, were sleeping.1 The truck was
parked in Whittier Narrows Park. Defendant asked for
assistance to repair his bike, which had a flat tire. Defendant
startled Mendez, who asked defendant to leave. Defendant did
not leave. When Estrada awoke, he exited the truck, and an
altercation between defendant and Estrada ensued.
It is undisputed that defendant used a Leatherman
multitool, similar to a pocket knife, to cut Estrada’s left cheek.
Defendant testified, “I swung and I skinned his cheek.” It is also
undisputed that Estrada hit defendant with a metal pipe.
Estrada required stitches to repair the wound on his cheek from
defendant’s Leatherman tool. A bystander, Acosta, called 911
and Deputy Sheriff Abel Morales responded to the call.2 A search
of defendant and the location where the incident occurred did not
produce defendant’s Leatherman tool.
1 We refer to the victim and eyewitnesses (Estrada,
Mendez & Acosta) by their last names only for their protection.
(See Cal. Rules of Court, rule 8.90(b)(4) & (b)(10).) We intend no
disrespect.
2 According to Estrada, Morales arrived about five minutes
after defendant left the scene. According to Acosta, it took 15 to
20 minutes for the deputy sheriff to arrive.
3
The vigorously disputed issue was whether Estrada or
defendant started the physical altercation. Estrada testified he
did not try to punch, kick, or hit defendant before defendant cut
his cheek with a knife. Estrada hit defendant with a metal pipe
only when defendant raised his arm to hit Estrada in the face.
Estrada acknowledged hitting defendant twice with the metal
pipe.3 Estrada’s father, Mendez, testified that defendant tried to
punch Estrada and Estrada returned the punches. Mendez
further testified that defendant then retrieved a knife and cut
Estrada’s left cheek. Defendant swung the knife multiple times
at Estrada before Estrada took a metal pipe from the truck and
hit defendant on the arm with the pipe. Acosta, the eyewitness,
testified that he saw defendant hit Estrada and saw defendant
stab Estrada. Acosta stated that he did not see Estrada try to hit
defendant. Acosta also acknowledged that he did not observe the
entire incident because he was checking his phone.
In contrast, defendant testified that within two minutes of
exiting the truck where he had been sleeping, Estrada took a
metal pipe from the back of the truck. According to defendant,
defendant did not retrieve his Leatherman multitool until after
Estrada hit him twice with the metal pipe. Defendant elaborated
that Estrada hurt him by hitting him with the pipe, causing
defendant’s arms to swell and defendant to lose feeling in his
hands. Defendant testified that peace officers were unable to
handcuff him after the incident because of the swelling in his
arms. Defendant further testified that he received four or five
stitches in his arm as a result of the altercation with Estrada. A
defense investigator testified that in a pretrial interview, Acosta
3 Estrada testified consistently at the preliminary hearing.
4
reported Estrada swung a metal pipe at defendant several times
and hit defendant with it twice.
There also was disputed testimony as to whether defendant
threatened to kill Estrada and Mendez.
The trial court instructed the jury on self-defense. Defense
counsel argued that defendant acted in self-defense.
DISCUSSION
1. Defendant Does Not Demonstrate the Trial Court
Abused Its Discretion in Excluding Evidence that
Acosta and Estrada Asked for the Form to Apply for a
U-Visa
Relying on Evidence Code section 352, the trial court
rejected defendant’s request to cross-examine Acosta and Estrada
on their request to the prosecutor for a form to apply for a
U-Visa, a type of visa we describe below. On appeal, defendant
contends the trial court erred in excluding this evidence: “[T]he
evidence was relevant and probative of both Acosta’s and
[Estrada]’s bias, motive to testify, and motive to exaggerate . . .
the incident and benefit the prosecution.” Defendant adds that
Estrada and Acosta “had a bias in that they had a legitimate
stake in the outcome of the trial; they were seeking legal status
in this country under the U-VISA program.” Defendant further
argues the trial court’s ruling denied him his right to present a
defense, due process, and a fair trial.
The Attorney General counters with the trial court’s
discretion under Evidence Code section 352 to “exclude evidence
that is of marginal impeachment value if it would result in an
undue consumption of time, confuse the issues, or create a
substantial danger of undue prejudice.” The Attorney General
5
argues the trial court did not abuse that discretion given the
“limited probative value” of the evidence, the prejudice resulting
from informing the jury that Estrada and Acosta were
undocumented immigrants; and the undue consumption of time
required to explain complex immigration laws and processes.
Finally, the Attorney General argues defendant does not have a
constitutional right to admit evidence of limited probative value.
We begin with additional factual background and then turn
to the parties’ arguments. We conclude defendant demonstrates
no evidentiary or constitutional error.
a. Additional facts
In their trial brief, the People asked the trial court
pursuant to Evidence Code section 352, to exclude any evidence
of Acosta’s and Estrada’s request for a U-Visa application form
(Form I-918). The People reported that on January 16, 2020,
approximately three months after Estrada testified at the
preliminary hearing, Acosta approached the prosecuting attorney
outside the courtroom on the day the case was set for trial.
Acosta asked the prosecutor for the U-Visa application
paperwork. Estrada overheard Acosta’s request and also
requested the paperwork.
When Acosta and Estrada requested the application, the
prosecutor “advised Mr. Acosta that [he] did not think he [Acosta]
was eligible as he was not a victim” but that Estrada might be
eligible. The prosecutor told Estrada and Acosta that they could
submit the forms to the prosecutor for certification but he “could
not guarantee” certification because “there are very strict
requirements and not all people or all cases qualify.” The
prosecutor thereafter mailed the U-Visa application forms to
6
Acosta and Estrada. As of January 21, 2020, the prosecutor
had not received an application from either of them.
In a motion in limine, defendant sought permission to
cross-examine Estrada and Acosta on their request for the U-Visa
application form. Defendant claimed the evidence was relevant
as to “Acosta’s and Mendez’s bias, motive to testify, and motive to
exaggerate both the incident and benefit the prosecution.”
Defendant added that the evidence was essential to evaluating
credibility: “The fact that the witnesses are seeking substantial
personal gain from their participation in this case bears on their
credibility. Just as the Court would permit cross-examination on
an expert witness’s fees, it should permit cross-examination on
[Mr. Estrada]’s and Mr. Acosta’s efforts to obtain immigration
benefits from their involvement in this case.” Defendant
explained that an immigration expert would not be required
because the issue was “what benefits [Mr. Estrada] and
Mr. [Acosta] believe[d] they may be eligible for . . . .” Defendant
relied solely on the prosecutor’s statements regarding his
conversations with Acosta and Estrada, and did not offer any
evidence in support of his argument. Nor did he request an
Evidence Code section 402 hearing on the motion to question the
two witnesses about the visa.
The trial court excluded cross-examining Acosta and
Estrada on their requests for the U-Visa application form. The
court reasoned that Estrada had made the request only after he
testified under oath at the preliminary hearing and the “issue of
U-Visa is highly prejudicial and really not at all relevant. . . . His
[Estrada’s] testimony is already on the record. There is no
evidence it’s being influenced by this issue. [¶] Furthermore,
some of his testimony is recorded either by photograph or video
7
and he’s not the sole witness to the incident. For those reasons
under [Evidence Code section] 352 the court would disallow
counsel to cross examine him on that issue.”4
b. Legal background
“With the enactment of the Victims of Trafficking and
Violence Protection Act of 2000 (“VTVPA”), Congress created the
‘U’ nonimmigrant classification (‘U’ visa) for victims of certain
qualifying criminal activity, including victims of domestic
violence, sexual assault, trafficking of aliens, and other crimes.
[Citations.] The ‘U’ visa was intended to provide temporary legal
status to such victims who cooperate with officials during
investigations and prosecutions.” (Fonseca-Sanchez v. Gonzales
(7th Cir. 2007) 484 F.3d 439, 442, fn. 4.) The U-Visa program
allows the “victims of certain crimes . . . to reside lawfully in the
United States for a period of four years” and to apply for lawful
permanent residency “[o]nce an individual has resided
continuously in the United States for three years following the
receipt of a U–Visa.” (Romero-Perez v. Commonwealth (Ky.App.
2016) 492 S.W.3d 902, 906.)
“To obtain a U-Visa the applicant must: (1) ‘possess
specific facts regarding the criminal activity leading a certifying
official to determine that the petitioner has, is, or is likely to
4 Defendant interprets the trial court’s ruling as
suggesting that defendant delayed in requesting admission of the
requests for U-Visa application forms. The record instead
suggests that the delay noted by the trial court concerned
Estrada’s delay in requesting a U-Visa, not defendant’s delay in
requesting admission of the evidence. In any event, the record
shows defendant timely raised the issue.
8
provide assistance to the investigation or prosecution of the
qualifying criminal activity,’ [citation], (2) [demonstrate that he
or she is] ‘being helpful, or is likely to be helpful to a certifying
agency in the investigation or prosecution of the qualifying
criminal activity upon which his or her petition is based, and
since the initiation of cooperation, has not refused or failed to
provide information and assistance reasonably requested.’
[Citation.]” (Romero-Perez v. Commonwealth, supra, 492 S.W.3d
at p. 906.) To apply for a U-Visa, a person “must submit[ ] Form
I-918.” (8 C.F.R. § 214.14(c)(1) (2021).) Under the applicable
federal regulations, a “[v]ictim of qualifying criminal activity
generally means an alien who has suffered direct and proximate
harm as a result of the commission of qualifying criminal
activity.” (8 C.F.R. § 214.14(a)(14) (2021).) Qualifying criminal
activity includes “felonious assault.” (8 C.F.R. § 214.14(a)(9)
(2021).) Certain family members of the victim may also qualify
for a U-Visa. (8 C.F.R. § 214.14(a)(10) (2021).) To obtain a U-
Visa, a “certifying agency” must certify that “the petitioner has
been helpful, or is likely to be helpful in the investigation or
prosecution of the qualifying criminal activity of which he or she
is a victim.” (8 C.F.R. § 214.14(a)(12) (2021).) Certifying agency
includes a prosecutor. (8 C.F.R. § 214.14(a)(2) (2021).)
Courts in other states have permitted a criminal defendant
who has applied for a U-Visa to cross-examine a victim
concerning his or her application. For example, a Kentucky
appellate court concluded: “One can readily see how the U-Visa
program’s requirement of ‘helpfulness’ and ‘assistance’ by the
victim to the prosecution could create an incentive to victims
hoping to have their U-Visa’s granted.” (Romero-Perez v.
Commonwealth, supra, 492 S.W.3d at p. 906.) “Even if the victim
9
did not outright fabricate the allegations against the defendant,
the structure of the program could cause a victim to embellish
her testimony in the hopes of being as ‘helpful’ as possible to the
prosecution.” (Ibid.)
Similarly, an Oregon appellate court held evidence that a
victim had applied for a U-Visa is relevant in a criminal
prosecution because it has a tendency to support the inference
that the victim has an interest in testifying in order to stay in
this country legally. (State v. Valle (Or.App. 2013)
255 Or.App.805, 814; see also State v. Del Real-Galvez (Or.App.
2015) 270 Or.App. 224, 230 [relying on Valle].) The South
Carolina Supreme Court reached the same conclusion. (State v.
Perez (2018) 423 S.C. 491, 500 [“a jury could see the U-visa
applications as a means of establishing bias”].) Appellate courts
have, however, upheld rulings that evidence of a witness’s
immigration status or involvement with the U-Visa program was
inadmissible when there was no evidence that the witness
applied or intended to apply for a U-Visa (State v. Lopez
(N.C.Ct.App. 2020) 852 S.E.2d 658, 660–661), or when a “great
length of time” had passed between the victim’s report of the
crime and the time she filed her U-Visa application (State v.
Buccheri-Bianca (Ariz.Ct.App. 2013) 312 P.3d 123, 127).
In People v. Villa (2020) 55 Cal.App.5th 1042, our
colleagues in the Fourth District affirmed a trial court’s decision
to exclude evidence that a victim had an outstanding application
for a U-Visa at the time of trial. (Id. at pp. 1047–1048.) At an
Evidence Code section 402 hearing, the victim stated that she
learned about the U-Visa program after she testified at the
preliminary hearing. (Villa, at p. 1048.) She completed the
U-Visa application and “understood she would have to cooperate
10
with the prosecution of the case, testify if she was subpoenaed,
and testify truthfully.” (Ibid.) The trial court excluded the
evidence under Evidence Code section 352, finding that its
probative value was “far outweighed by ‘the tendency of that
particular item to open up a massive inquiry requiring an undue
consumption of court time and tending to confuse issues and
invite jury speculation.’ ” (Villa, at p. 1048.)
The appellate court recognized that the victim’s
“application for a U-Visa was relevant impeachment evidence.”
(People v. Villa, supra, 55 Cal.App.5th at p. 1051.) The court also
observed that the victim’s trial testimony was similar in all
material respects to her preliminary hearing testimony during
which she was unaware of the U-Visa process. (Id. at p. 1052.)
The court then balanced the limited probative value of the
evidence against the “ ‘huge chunk of time’ ” necessary to
evaluate the victim’s motivation such as whether she changed
her story after the preliminary hearing when she learned of the
U-Visa program, her beliefs about what the prosecution expected
from her, and the status of her application. (Id. at p. 1053.) The
court affirmed the exclusion of the evidence, explaining that,
among other reasons, the evidence could prejudice the jury
against the undocumented victim. (Ibid.)
c. The trial court did not abuse its discretion in
excluding the evidence under Evidence Code
section 352
Turning to the case before us, the parties correctly state
that this court reviews a trial court’s evidentiary ruling for abuse
of discretion. “On appeal, we will uphold a trial judge’s exercise
of discretion under [Evidence Code] section 352 unless it was
exercised in an arbitrary, capricious, or patently absurd manner.”
11
(People v. Villa, supra, 55 Cal.App.5th at p. 1051.) We examine
the court’s ruling based on the record before the court at the time
of its ruling. (People v. Hartsch (2010) 49 Cal.4th 472, 491;
People v. Fruits (2016) 247 Cal.App.4th 188, 208.) “ ‘ “[A] ruling
or decision, itself correct in law, will not be disturbed on appeal
merely because given for a wrong reason. If right upon any
theory of the law applicable to the case, it must be sustained
regardless of the considerations which may have moved the trial
court to its conclusion.” [Citation.]’ [Citation.]” (People v. Zapien
(1993) 4 Cal.4th 929, 976; see also People v. Turner (2020)
10 Cal.5th 786, 807.)
“No evidence is admissible except relevant evidence.”5
(Evid. Code, § 350.) “As a general matter, a defendant is entitled
to explore whether a witness has been offered any inducements
or expects any benefits for his or her testimony, as such evidence
is suggestive of bias.” (People v. Brown (2003) 31 Cal.4th 518,
544.) Although “ ‘[c]ross-examination to test the credibility of a
prosecuting witness in a criminal case should be given wide
latitude’ [citation], such latitude does not ‘prevent the trial court
from imposing reasonable limits on defense counsel’s inquiry
based on concerns about harassment, confusion of the issues, or
relevance’ [citations].” (Id. at p. 545.)
We acknowledge that a witness’s desire to obtain a visa
could color his testimony and under some circumstances, be
compelling evidence of bias outweighing the potential prejudicial
effect on the jury of disclosing that the witness may be in the
5 Relevant evidence is evidence “having any tendency
in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code,
§ 210.)
12
United States illegally. Here, however, the evidence to support
an inference of bias or motive was very weak.
Estrada’s testimony at the preliminary hearing, before he
asked for the visa application, did not vary from his testimony at
trial, weakening any inference of bias in his testimony at trial.
As to Acosta, any discrepancies between his trial testimony and
his statements to the police were not revealed until after the
court ruled on defendant’s motion in limine, and defendant did
not renew the motion after Acosta’s testimony.6 Nor is there any
evidence that the prosecutor promised or intimated that he would
support any future visa application, U-Visa or otherwise. Indeed,
the prosecutor discouraged Acosta from applying by telling him
he was unlikely to qualify for the visa,7 and cautioned Acosta and
Estrada that he could not guarantee certification because of the
strict requirements for obtaining the visa.
On the other hand, the risk of prejudice against the
witnesses was apparent. Admitting evidence that Acosta and
Estrada had requested U-Visa applications would have risked
jurors discrediting their testimony because of anti-immigrant
bias. This risk of prejudice was heightened where Estrada
appears to have been homeless, living out of a truck. Where the
inference of a witness’s desire to obtain a U-Visa is strong, the
risk of prejudice arising from anti-immigrant bias may be
6For example, Acosta was not consistent in describing
whether defendant stabbed Estrada before or after Estrada
procured the pipe. Acosta also was inconsistent in his statements
whether Estrada hit defendant with the metal bar.
7 Acosta was not the victim of an offense or family member
of a victim, a requirement for obtaining a U-Visa. (8 C.F.R.
§ 214.14(a)(14)(i) (2021).)
13
insufficient to exclude the evidence. (See, e.g., Romero-Perez v.
Commonwealth, supra, 492 S.W.3d at p. 907 [although “a
witness’ immigration status could trigger negative sentiments in
the minds of some jurors,” “a criminal defendant’s right to
effectively probe into a matter directly bearing on witness
credibility and bias must trump any prejudice that would result
from the jury’s knowledge of the victim’s immigration status”].)
Here, however, where the inference of bias had weak support in
relation to this prejudice, we see no abuse of discretion in
excluding the evidence.
d. Defendant demonstrates no constitutional
error
Defendant argues that exclusion of the evidence of
Estrada’s and Acosta’s requests for the Form I-918 deprived him
of the right to present a complete defense, to confront these
witnesses, and of a fair trial in violation of the Fourteenth
Amendment. There are two problems with defendant’s
arguments. First, he forfeited them. Second, they have no merit
given the attenuated relevance, if at all, of Acosta’s and Estrada’s
requests for the Form I-918.
Defendant fails to demonstrate he preserved these
constitutional arguments. In his motion in limine, defense
counsel argued that the “U-Visa applications” were relevant to
credibility and would not require an undue consumption of time.
By failing to raise constitutional issues in the trial court,
defendant forfeited them. “As the United States Supreme Court
recognized in United States v. Olano [(1993) 507 U.S. 725, 731],
‘ “[n]o procedural principle is more familiar to this Court than
that a constitutional right,” or a right of any other sort, “may be
forfeited in criminal as well as civil cases by the failure to make
14
timely assertion of the right before a tribunal having jurisdiction
to determine it.” ’ [Citations.] ‘The purpose of this rule is to
encourage parties to bring errors to the attention of the trial
court, so that they may be corrected. [Citation.]’ [Citations.]”
(In re Sheena K. (2007) 40 Cal.4th 875, 880–881.)
Second, as defendant recognizes, “[f]or a defendant’s
constitutional rights to override the application of ordinary rules
of evidence, the proffered evidence must have more than slight
relevancy to the issues presented.” “As a general matter, a
defendant has no constitutional right to present all relevant
evidence in his favor. [Citation.] In other words, ordinary
evidentiary rules do not impermissibly infringe on the
defendant’s right to present a defense. [Citation.] Thus, courts
may ordinarily exclude evidence after weighing its probative
value against any unfair prejudicial effect. [Citation.] However,
there are instances where due process, the right to a fair trial,
and other constitutional guarantees trump the rules of evidence.
‘For a defendant’s constitutional rights to override the application
of ordinary rules of evidence, “ ‘the proffered evidence must have
more than “slight-relevancy” to the issues presented.
[Citation.] . . . [Citation.] The proffered evidence must be of some
competent, substantial and significant value. [Citations.]’
[Citation.]” [Citation.]’ [Citation.]” (People v. Guillen (2014)
227 Cal.App.4th 934, 1019.)
As our preceding discussion demonstrates, admissibility of
Estrada’s and Acosta’s requests for the Form I-918 was at best,
based on a very thin inference of bias. We thus fail to discern
how defendant’s constitutional rights were impinged by the
trial court’s exclusion of this evidence under Evidence Code
section 352.
15
2. Substantial Evidence Supported the Great Bodily
Injury Enhancement
Defendant argues that the jury’s true finding regarding the
great bodily injury enhancement was not supported by
substantial evidence. Defendant argues that a “simple laceration
or a simple abrasion[ ] must be accompanied by something more.”
a. Additional facts
Defendant retrieved his Leatherman multitool from his
backpack and used it to cut Estrada’s face. The cut was two
centimeters long and bloody. An ambulance took Estrada to the
hospital where a physician’s assistant used seven stitches to close
the cut. The physician’s assistant used two layers of stitches.
The purpose of the lower layer was to connect soft tissue under
the skin. The purpose of the upper layer was to connect the skin.
A CT scan revealed no fracture. The physician’s assistant
testified that there was no injury to the internal structures under
Estrada’s skin. Estrada reported his pain was “7 out of 10.”
About a week after the incident, Estrada returned to the
hospital to have the stitches removed, and there were no
complications. At the sentencing hearing, the trial court noted
that Estrada “is scarred.”
b. Legal analysis
Penal Code section 12022.7 provides in pertinent part:
“Any person who personally inflicts great bodily injury on any
person . . . in the commission of a felony or attempted felony
[shall be punished by an additional consecutive term of three
years]. [¶] . . . [¶] As used in this section, ‘great bodily injury’
means a significant or substantial physical injury.” (Pen. Code,
16
§ 12022.7, subds. (a) & (f); see also People v. Cross (2008)
45 Cal.4th 58, 63 [“Great bodily injury ‘means a significant or
substantial physical injury.’ [Citations.]” ].) The injury “need not
be so grave as to cause the victim ‘ “permanent,” “prolonged,” or
“protracted” ’ bodily damage.” (Cross, at p. 64, quoting People v.
Escobar (1992) 3 Cal.4th 740, 750.) “Proof that a victim’s bodily
injury is “great”—that is, significant or substantial within the
meaning of section 12022.7—is commonly established by evidence
of the severity of the victim’s physical injury, the resulting pain,
or the medical care required to treat or repair the injury.” (Cross,
at p. 66.) Soft tissue injury may qualify as great bodily injury.
(People v. Le (2006) 137 Cal.App.4th 54, 58–59.)
Whether the harm resulting to the victim constitutes great
bodily injury is a question of fact for the jury, whose verdict we
must uphold if supported by substantial evidence. (People v.
Wolcott (1983) 34 Cal.3d 92, 107.) “ ‘ “If there is sufficient
evidence to sustain the jury’s finding of great bodily injury, we
are bound to accept it, even though the circumstances might
reasonably be reconciled with a contrary finding.” ’ [Citation.]”
(People v. Escobar, supra, 3 Cal.4th at p. 750.) “Substantial
evidence is reasonable, credible and of solid value such that a
reasonable jury could find the defendant guilty beyond a
reasonable doubt.” (People v. Salazar (1995) 33 Cal.App.4th 341,
346.)
This standard of review is dispositive. Substantial
evidence supported the jury’s true finding even if arguendo there
was evidence that may have supported a contrary finding.
Defendant cut Estrada’s face. Defendant concedes that a
laceration can constitute great bodily injury and that great bodily
injury does not require permanent disfigurement. At the time of
17
the incident, Estrada reported significant pain, which he
described as “a 7” on a scale of 10. Treatment required multiple
layers of stitches to hold together both the underlying soft tissue
and the surface skin, and a return visit to the hospital to remove
the stitches. The jury also had a picture of the bloody cut at the
time Estrada was in the hospital and saw Estrada’s face when he
testified. A reasonable jury could have found persuasive the
evidence of the depth of the cut and the pain Estrada suffered
when it found true that Estrada had suffered great bodily injury.
People v. Medellin (2020) 45 Cal.App.5th 519, 523, 529
supports our conclusion. The Medellin court held that a cut on a
victim’s chin that hurt for three days, required three stitches and
a second hospital visit to remove them, left a little scar, and
loosened a false tooth was sufficient to support a true finding of
great bodily injury. (Ibid.) The cut on Estrada’s face was
qualitatively worse than the Medillin victim’s cut. A fortiori,
substantial evidence supported the jury’s true finding of great
bodily injury.
Contrary to defendant’s argument, People v. Martinez
(1985) 171 Cal.App.3d 727 does not compel a different conclusion.
In Martinez, the court found the following evidence insufficient to
support a great bodily injury enhancement: “ ‘a minor laceration-
type injury in the middle of [the victim’s] back’ ” (id. at p. 735).
The wound was minor because the victim was wearing two shirts
and a heavy coat. (Ibid.) Even the prosecutor described the
injury as a “ ‘pinprick’ ” (id. at p. 736); the injury did not require a
hospital visit. (Id. at p. 735.) Here, Estrada’s face was uncovered
when defendant cut him, and his wound bled; the laceration
required two layers of stitches and two hospital visits. As
explained above, the laceration to Estrada’s left cheek was more
18
than minor and caused him measurable pain. Simply put,
substantial evidence supported the jury’s finding of great bodily
injury.
3. Defendant Does Not Demonstrate Instructional
Error
Over objection, the trial court instructed the jury: “If the
defendant fled immediately after the crime was committed, that
conduct may show that he was aware of his guilt. If you conclude
that the defendant fled, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the
defendant fled cannot prove guilt by itself.”
Defendant argues the trial court erred in giving this
instruction because defendant left the area of the incident when
Estrada and Mendez asked him to leave. Defendant also asserts
that he did not leave the park, but was at the edge of the park
when the deputy sheriff arrived.
a. Additional facts
Deputy Morales located defendant about 200 yards from
where he fought with Estrada. Deputy Morales described
defendant as “appear[ing] angry and [he] was sweating as he was
running away.” A search of defendant revealed no weapons.
Defendant testified that he sat down in the park to “wait
for the police to come and straighten all this out.” Defendant
testified, “I didn’t leave the area. I was still in the park. I just
created distance.”
During closing argument, the prosecutor argued, “[T]he
defendant leaves the scene, he flees. Again this is another key
piece of evidence that supports the defendant was guilty . . . .”
The prosecutor argued, “[T]he defendant runs away. Once again
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this is behavior that’s inconsistent with someone who is
innocent.”
Defense counsel retorted: “[O]ne of the prosecutors’ main
points in closing argument he tries to make you think my client
fled, showing he knew he was guilty. That’s a little rich for him
to argue that, don’t you think? All these guys wanted the whole
time was for my client to leave. They were asking him to leave.
Then when he does leave the prosecutor tries to use that against
him. Tries to say ‘Oh he shouldn’t have left. That shows he’s
guilty.’ ”
b. Legal analysis
“A flight instruction is proper whenever evidence of the
circumstances of defendant’s departure from the crime scene or
his usual environs, or of his escape from custody after arrest,
logically permits an inference that his movement was motivated
by guilty knowledge.” (People v. Turner (1990) 50 Cal.3d 668,
694.) “ ‘ “ ‘[F]light requires neither the physical act of running
nor the reaching of a far-away haven. [Citation.] Flight
manifestly does require, however, a purpose to avoid being
observed or arrested.’ ” [Citation.]’ [Citation.]” (People v. Leon
(2015) 61 Cal.4th 569, 607.)
The evidence here permitted the inference that
consciousness of guilt motivated defendant’s movements.
Deputy Morales testified that defendant “was running away.”
Defendant knew the police were coming because he testified that
he was waiting for them. In addition to leaving the scene,
defendant at least arguably discarded the weapon he had used to
cut Estrada’s face. Defendant did not call for assistance even
though he knew he had cut Estrada, who was bleeding.
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(People v. Bell (2020) 48 Cal.App.5th 1, 20 [fact that defendant
did not call for help supports giving flight instruction].)
Defendant’s argument that the “only rationale
inference . . . is that appellant simply left one area of the park
and moved to another after the complaining witnesses repeatedly
told him to do so” ignores this evidence not supporting his
preferred inference. Taking into account all the evidence,
defendant demonstrates no error in instructing the jury on flight.
(People v. Bell, supra, 48 Cal.App.5th at p. 20 [flight instruction
proper when evidence supports it even if evidence also supports a
different inference].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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