In re Pedro B. CA2/2

Filed 10/20/20 In re Pedro B. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re PEDRO B., a Person Coming B298954
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. PJ52244)
THE PEOPLE,
Plaintiff and Respondent,
v.
PEDRO B.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Morton Rochman, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Laini Millar Melnick, 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, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________
In a first amended petition filed by the Los Angeles County
District Attorney’s Office pursuant to Welfare and Institutions
Code section 602, it was alleged that Pedro B. (minor)1 committed
attempted murder, caused great bodily injury, and used a deadly
weapon (count 1; Pen. Code, §§ 664/187, subd. (a), 12022.7,
subd. (a), & 12022, subd. (b)(1))2 and committed assault with a
deadly weapon and caused great bodily injury (count 2; §§ 245,
subd. (a)(1), 12022.7, subd. (a)).
Minor denied the allegations.
After a contested adjudication, the juvenile court found the
allegations true. It declared minor to remain a ward of the
juvenile court and committed him to the division of juvenile
facilities for a maximum of six years.
Minor appeals from the juvenile adjudication.
We agree with minor that the juvenile court wrongly found
him guilty of the crime of second degree attempted murder, a
crime that does not exist. Accordingly, we reverse that portion of
the juvenile court’s adjudication. Because minor was not
sentenced on the assault with a deadly weapon allegation
pursuant to section 654, the matter is remanded for resentencing
on this charge and on any applicable enhancements.
1 Minor was 17 years old at the time he committed the
charged offenses. Because he was 19 years old at the time of the
adjudication, he is sometimes referred to as the former minor.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Evidence
Alouis Felix Colgan (Colgan) met minor around the
beginning of 2017, when minor’s family moved into the
apartment directly next door to his. Their apartments shared a
wall. Colgan lived alone. Because Colgan suffered from Chronic
Obstructive Pulmonary Disorder (COPD) and had had back
surgery, it was difficult for him to walk up stairs. Colgan had
been taking oxycodone each morning and at times hydrocodone,
Norco, for seven years for his back. He used a cane, owning
several, and a walker to get around, and used a wheelchair inside
his apartment. Colgan kept his front door open because he
smoked cigars. Colgan could see minor walking up and down the
stairs to his apartment. He knew minor and his little brother.
Colgan believed minor was about 15 or 16 years old and his
brother was 11 or 12 years old.
Because of Colgan’s disabilities, twice a week minor would
take out his trash or pick up his mail when Colgan asked him
and he would pay minor $5 because he knew minor needed
money. He gave minor $200 for his sister when she had a baby.
Colgan had a person assigned to him through his worker’s
compensation claim who came to his home three to five days a
week, for two to three hours a day, to help him with shopping and
cleaning.
On November 12, 2017, minor went to Colgan’s apartment
to ask for aspirin while Colgan was sitting in his recliner in the
living room watching a football game. Colgan told him to look in
the kitchen drawer. Minor asked if he had any trash he wanted
him to take out. He told minor he did not know and to look at the
trash. Knowing minor was in the kitchen, Colgan asked him if he
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would get him a beer. Minor said, “‘I don’t play that game.’”
Colgan walked into the kitchen and got a beer. When he passed
by minor, Colgan said, “‘excuse me’” and minor stepped back.
After he got the beer and was on his way back out of the kitchen,
minor walked toward him. He turned sideways to pass by minor
and they bumped into each other. His rear end touched minor’s
legs. Colgan returned to sit in his wheelchair at his desk.
Suddenly, minor was standing a foot in front of him and
reiterated, in a “seriously scary” tone, “‘I don’t play that game.’”
Then Colgan felt a sharp stab in his head. He could see minor
had a metal blade, which appeared to be a knife. Minor hit him
in the head at least three or four more times before Colgan fell to
the floor. His head was bleeding down his face and he could not
see.
Colgan put his arms up to block more cuts from the knife.
Minor cut Colgan’s arms in several places. Minor stabbed Colgan
in his chest four to five times and he lost consciousness. Minor
stabbed him in his back. When Colgan regained consciousness,
he had trouble breathing and had blood all over his face. Almost
all of his white hair had turned brownish red. He asked minor
for his cellphone so that he could call for help. Minor
“deliberate[ly]” said he was taking his phone. In order to prevent
bleeding to death, Colgan grabbed a metal trashcan next to him
and pulled it tight to his chest, knowing his sister would arrive
soon.
Colgan’s sister arrived at his apartment to pick him up to
go to dinner and shopping. When he did not answer his phone,
she went to his apartment and could hear him screaming inside.
She unlocked the door with her key and saw him lying on the
floor near his desk holding a trashcan. He and the floor were
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covered in blood. He told her that minor had attacked him.
Colgan asked her to call the police. When she asked where his
phone was, Colgan said, “‘He took it.’” She ran back to her car to
retrieve her phone and called 9-1-1.
Los Angeles County Deputy Sheriff Michael Miller, who
was also an emergency medical technician (EMT), arrived to find
Colgan lying face down in a pool of blood. Colgan had 15 stab
wounds to his head and neck and 25 to 30 stab wounds to his
chest and abdominal area. One wound was an evisceration to his
abdominal area, causing his bowel to come out of his body. The
stab wounds on his chest were bleeding profusely. When Deputy
Miller turned Colgan over onto his back, his wounds began to
bleed more profusely because the pressure Colgan had been
applying to his wounds had slowed down the bleeding. Deputy
Miller provided trauma dressings to slow the bleeding to prevent
him from bleeding out.
The paramedics arrived and took Colgan to the hospital.
Colgan was in surgery for several hours for wounds to his wrists,
abdomen, bowels, and chest. Colgan spent a month in the
hospital, six to eight weeks in a convalescent hospital, two
months in assisted living, and then moved in with his sister
because he could no longer care for himself. As a result of the
stabbing, Colgan has bald areas on his head that no longer grow
hair, and scars on his arms from cuts, which were stapled closed.
He takes blood thinners, has nerve damage to his right hand, has
posttraumatic stress disorder (PTSD), lost 20 pounds, has
congestive heart failure, his teeth are decaying and falling out
due to lack of blood flow, and his memory has been affected,
including what happened during the attack.
5
In 2003, Colgan was convicted of two counts of indecent
exposure, under section 314, and as a result had to register as a
sexual offender, under section 290. Colgan was in a car accident
in July 2017 while he was in Arizona attending an inpatient
alcohol treatment program. His knee was injured in the accident
and he had to be in a convalescent home for two weeks before he
could return to the treatment center. Colgan had no memory of
inviting minor’s family over on Thanksgiving or Christmas the
previous year. He did not remember communicating with minor’s
mother. Colgan testified that the beer he had requested that
minor grab for him was nonalcoholic because he had been sober
since going to the inpatient treatment in July 2017. After being
shown photographs of the Coors Light in his refrigerator, Colgan
stated that he was mistaken with his previous testimony.
On a prior occasion, Colgan had banged on minor’s door.
Colgan had also showed minor his revolver. Colgan owned a
small club that was in the living room on the day of the stabbing.
There were black marks on Colgan’s wall around his thermostat
caused by him hitting the wall with his club.
On another occasion prior to the instant offenses, Colgan
accused minor of burglarizing his home and stealing his safe
containing a handgun and $28,000 in cash. He reported the
burglary to the police, told the police he thought minor did it, and
spoke angrily to minor about the burglary. When Colgan came
home to discover the burglary, he had minor come over to read
the tagging on his wall and accused him of stealing the safe.
After accusing him of burglary, he continued to have minor help
him take out his trash.
Colgan never showed minor pornography. Colgan did not
rub his hand on minor’s thigh and up to his crotch. Colgan did
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not try to hit minor with his cane when he tried to leave or pull
him to the ground before the stabbing.
II. Defense Evidence
Los Angeles County Deputy Sheriff Garrett Gallegos
testified that he took a report from Colgan on June 12, 2017,
after his safe containing a firearm and approximately $25,000 in
cash were stolen. Colgan told him that he believed minor had
stolen the safe because he knew about the valuables in the home.
Colgan told him that minor had asked Colgan to store some
alcoholic beverages to hide them from his mother. Colgan told
Deputy Gallegos that he did not want a print technician to
fingerprint his residence because he had already cleaned the
sliding glass door, which was where he believed the entry point
was.
Los Angeles County Deputy Sheriff Jeffrey Burrow testified
that he was the investigating officer for the stabbing. He took
photographs after the stabbing. There was a trail of blood from
Colgan’s apartment to minor’s apartment. Deputy Burrow
searched minor’s home.
Because minor said that Colgan had hit him with a cane or
something similar, he went to Colgan’s apartment. He recovered
a club and four canes from Colgan’s home.
Deputy Burrow spoke to Colgan in the hospital. Colgan
told him that he told minor to get aspirin from his bathroom.
Colgan said that he offered minor Vicodin, but minor declined.
Colgan told Deputy Burrow that minor had punched him by
surprise and that he did not remember having been stabbed.
Colgan did not tell him that minor said he was going to take his
cellphone. Colgan told him that he had rubbed against minor in
the kitchen. Colgan also told Deputy Burrow that at minor’s
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request, he had loaned minor $1,800 and that minor never paid
him back.
Patricia Barajas (Barajas) testified that she provided
mental health services to minor and his younger brother and
sometimes the whole family in their home once a week. She went
to their home with a team of four people. She saw Colgan when
she went to the home because his front door was always open.
Dr. Darrel Turner testified as an expert on grooming
behaviors. He testified that grooming occurs when an adult who
intends to have sexual contact with a minor engages the minor
and normalizes sex, sexual contact, and sexual themes.
Grooming can last from weeks to years before the offender
commits sexual contact. The goal of grooming is to overcome
resistance and minimize disclosure. Children who are
marginalized, disconnected from their family, have been in legal
trouble, have mental health issues, or have known behavior
problems are more vulnerable to being groomed for a sexual
assault because they have less credibility when they disclose.
Offenders will engage in acts with plausible deniability, such as
mistakenly showing pornography by leaving it up on the
computer, which opens the discussion about sex, walking around
the house naked with their door open, or walking by and
accidentally rub a hand up the victim’s thigh to his or her
privates. They groom the environment around the child as well
to gain access to the child and reduce the chance of people
believing any disclosure, for example being kind and loaning
money. Offenders use drugs, alcohol, and pornography with
adolescent victims. Victims do not know they are being groomed.
Offenders may accuse victims of breaking rules or stealing to
create fear or guilt and to hold over the victim’s head in order to
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gain more compliance. The touching starts gradually with a pat
or rub on the back, then a rub on the leg, and then a pat on the
bottom; they test the waters to see what they can get away with
without the victim complaining.
Developmental psychologist Dr. Elizabeth Cauffman
testified as an expert in adolescent development, juvenile justice,
and maturity in adolescents. She testified that maturity and the
emotional system continue to develop into adulthood.
Adolescents take more risks because they do not have the
emotional ability to self-regulate until they are 25 years old.
Development is broken down into early adolescence (10 to 13
years old), midadolescence (13 to 16 years old), late adolescence
(16 to 18 years old), and young adulthood (19 to 20, 25 years old).
Adolescents tend to be more reactive when threatened.
Adolescents who abuse substances delay their brain development
and are more likely to be impulsive. Trauma also delays brain
development and delays self-regulation and, therefore, maturity.
The majority of adolescents who commit crime desist over time as
they mature; they grow out of criminal behavior. Most criminal
behavior occurs from ages 18 to 20 and then declines.
Minor testified that he was born in Mexico, and came to the
United States when he was seven years old. His parents
neglected him, and Department of Children and Family Services
(DCFS) came to his house in 2008. His father drank often and
would get angry; he also physically abused minor and minor’s
mother. In 2014, he witnessed a friend die and violence in his
own home.
Minor began drinking and smoking marijuana when he was
13 years old, three times a week. He found his father’s crystal
meth and meth pipe under their sink. Because his father would
9
get drunk and argue with him constantly, which would lead to
physical or verbal abuse, minor ran away for one night. His
mother would often be at work when his father was abusive.
When he was 13 or 14 years old, DCFS came to their house again.
DCFS required him to be in therapy due to his depression and his
father’s abuse. In April 2016, he was 16 years old and his family
did not have food to eat.
In October 2016, minor’s family moved to the apartment
next to Colgan. Colgan introduced himself the day they moved in
and told them if he ever screamed for help, to call an ambulance.
Two days later, Colgan invited minor, his little brother and his
mother into his house and told them if they ever needed help to
come to him. He showed them his gun that he kept behind his
couch. A few days later, minor began doing errands for Colgan
because he said he was disabled. Minor took out his trash, got
his mail, moved his furniture, vacuumed his house, and did other
chores. Colgan paid minor $5 each time. Colgan left his front
door open often.
For the first few months, Colgan was friendly. Colgan
invited minor and his family over to eat on Thanksgiving and
Christmas. Colgan regularly loaned minor’s mother money to
pay for rent and she would pay him back when she got paid.
Minor spent most of his time with Colgan, three to four times a
week, without other adults as his mother was usually at work.
Colgan offered minor alcohol four times a week; and he bought
minor alcohol when minor asked. A few months after they moved
in, Colgan changed when he accused minor of stealing his
toolbox, a pair of boots, a vacuum, ammunition, and money from
his safe. After accusing him of stealing something, Colgan would
10
apologize and have him take out his trash again, and then in
time would accuse minor of taking something else.
Three months after they moved in, Colgan was drunk and
banged on their door asking for his vacuum, which minor had
borrowed. Minor called the police and his sister put the vacuum
by his door. On a couple other occasions, Colgan banged on their
door or on their shared wall with his cane. On one occasion,
minor recorded Colgan banging on his door with his cell phone so
that they could show it to the police. Colgan had banged on his
door for 20 minutes, yelling that he wanted his money and his
gun that he thought minor had taken, and yelled racial slurs.
Minor called the police. After Colgan was robbed, he accused
minor of stealing his safe and gun. Colgan dragged minor to his
house, and showed him tagging on his wall. He begged minor to
read it, which he did. It said a gang name and that the gang
were cop killers. After a few months, Colgan resumed asking
minor to take out his trash.
Colgan showed minor a gun he wanted to buy on the
computer and when he opened the Internet, it was on a
pornography website. Colgan asked him about his sexual
experiences. Colgan showed him a .357 revolver and a black and
blue revolver in his apartment, as well as knives and a baton.
While drunk, Colgan shot his gun into the air on his porch in
front of minor on Christmas and on the Fourth of July. While
outside his front door, minor saw Colgan hitting the wall around
his thermostat with his baton while he was drunk after he
discovered his gun had been stolen. Colgan screamed that
whoever stole his gun was going to pay. Colgan kept his baton
and gun behind the couch.
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From October 2016 to November 2017, there were times
that minor’s home did not have enough food for the whole family.
Colgan gave minor food.
Minor had trouble sleeping because he was scared his
father would come home drunk and start beating him or his
mother. Minor told his therapist, Barajas, about Colgan because
he accused minor of taking items that were missing from his
house and would yell his name from his apartment. Barajas
asked minor if he ever abused him. He told her no.
In October 2017, after being placed at the Boys Republic in
San Bernardino and then staying with his uncle, he moved into
his own apartment.
On November 12, 2017, minor had spent the night before at
his mother’s apartment and was cleaning her house. Colgan
asked minor if he would get his mail and take out his trash.
After retrieving the mail and taking out the trash, he took a
shower. He asked Colgan if he had aspirin. Colgan told him that
he had Norco and he could come inside and take it. Minor
entered Colgan’s apartment and stood a foot behind Colgan while
they looked in the drawer at his computer desk. Minor felt
Colgan’s hand reach behind him and rest it on his thigh.
Colgan’s hand moved up to minor’s crotch. Minor said, “‘I don’t
play that game.’”
Minor tried to push Colgan away but instead he pushed
himself backward. Colgan, who appeared to be drunk, swung his
cane at minor. Minor backed away and Colgan struck the back of
minor’s hand with the cane. Minor hit Colgan four times in the
face with his fists. Colgan grabbed him and tried to pin him
down and they both fell down, knocking over the coffee table;
12
Colgan landed on top of minor, who was face down. Minor tried
to get up, but Colgan was holding his knees.
Minor saw a knife on the ground that had fallen off the
coffee table. He told Colgan if he did not let go, he was going to
stab him. Colgan told him not to leave and not to tell anyone.
Minor picked up the knife, stabbed Colgan’s right arm, and then
stabbed his left arm. They struggled and changed positions with
minor on top of Colgan. Because Colgan would not let him go,
minor stabbed him five times in the chest. Colgan finally
released his grip and minor stopped stabbing him and went to his
mother’s house, leaving a trail of blood behind him. He took the
knife with him. Minor thought Colgan was reaching for
something but did not know what; he was afraid it was his baton.
Minor returned to Colgan’s apartment after he thought he
lost his cellphone and picked up the phone he saw on the ground.
He later found his phone in his back pocket and threw the other
cellphone away. That night, he turned himself into the police.
He told the police that he was unsure whether Colgan had
touched him on purpose, that Colgan had tried to hit him with
his cane, not that he had, and that Colgan asked him why he was
doing this and asked him to call 9-1-1, which minor refused to do.
Forensic psychologist Dr. Michelle Margules testified as an
expert on trauma and PTSD. She had examined minor and
reviewed various records. Minor had a diagnosis of PTSD and
had a history of abuse and neglect and substance abuse. Abuse
impacts children’s social, emotional, and cognitive development
as well as memory, concentration, trusting adults, and
hypervigilance. Minor had difficulty with his memory with
certain childhood events and around the offense as well as
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difficulty sleeping and nightmares around the abuse he
experienced, depression, explosive outbursts, and hypervigilance.
DISCUSSION
I. Attempted second degree murder finding
Minor contends that his conviction of attempted second
degree murder must be reversed because (1) that offense does not
exist, and (2) implied malice is insufficient to support a conviction
of attempted murder.
A. Proceedings below
During his summation, the prosecutor argued that the facts
supported first degree attempted murder because minor had the
intent to kill Colgan when he stabbed him between 20 to 45
times. The prosecutor then argued, in the alternative, the facts
that supported second degree attempted murder, which was
based on implied malice.
The juvenile court thereafter issued its findings, stating:
“In conclusion, this court is convinced beyond a reasonable doubt
to the truth of the charges and finds [minor is] guilty of the crime
of attempted murder. The court fixes it at 2nd-degree attempted
murder. [¶] The court finds the enhancement of personally
inflicting great bodily injury to be true and the further
enhancement of personally using a deadly and dangerous weapon
to wit, a knife to be true.”
The matter was continued for disposition.
Prior to the continued hearing, the People submitted a
sentencing brief, reiterating that minor “was convicted of
Attempted Second-Degree Murder.” The People pointed out that
minor “face[d] a maximum sentence of 9 years for the attempted
murder,” plus an additional four years for the enhancements,
making his “total exposure . . . 13 years.” In so noting, the People
14
indicated that pursuant to section 654, subdivision (a), “the
assault with a deadly weapon [charge] merge[d] with the
attempted murder charge for purposes of sentencing.”
At the disposition hearing, the juvenile court reiterated
that minor was found guilty of “attempted murder in the 2nd
degree.” After commenting that minor faced a maximum
sentence of 13 years, it ordered him to be committed to the
division of juvenile facilities for six years.
B. Relevant law
The crime of attempted second degree murder is a
misnomer. As explained in People v. Favor (2012) 54 Cal.4th 868,
877, there is no substantive crime of attempted second degree
murder. The offense of premeditated attempted murder is not a
separate offense from attempted murder. (Ibid.) Specific intent
to kill is a requisite element of attempted murder, and implied
malice is insufficient to sustain such a charge. (People v. Smith
(2005) 37 Cal.4th 733, 739; People v. Lee (1987) 43 Cal.3d 666,
670.)
C. Analysis
We agree with minor that the juvenile court erroneously
convicted him of attempted murder in the second degree. There
is no such crime. It follows that minor’s conviction of this charge
must be reversed.
Urging us to affirm, the People argue that there is
sufficient evidence to support the juvenile court’s true finding
that minor committed attempted murder, as alleged in count 1.
After all, there is ample evidence of intent and express malice.
What the People are essentially asking us to do is determine
either that the juvenile court (1) implicitly and necessarily found
minor guilty of attempted murder, because attempted murder is
15
not divided into degrees (People v. Montes (2003) 31 Cal.4th 350,
353, fn. 2), or (2) could have found minor guilty of just attempted
murder.
The problem is that we cannot ignore the juvenile court’s
express language, which followed the prosecutor’s argument
regarding implied malice. Following the presentation of the
evidence, the prosecutor submitted her closing argument,
specifically asserting that the juvenile court had a choice—it
could find minor guilty of attempted first degree murder, or, “in
the alternative, if the court were to disagree with the People,
although we are confident that we have established this and we
have proven this beyond a reasonable doubt, there is still an
attempted 2nd-degree murder. [¶] And that’s because with
attempted 2nd-degree murder there is an implied malice.” The
prosecutor went on to discuss the four factors for implied malice
and the evidence that supported each of those factors.
After listening to this argument, the juvenile court then
issued its ruling, specifically finding minor guilty of attempted
second degree murder. Two weeks later, at disposition, the
juvenile court reiterated that it found minor guilty of attempted
murder in the second degree.
Based upon the foregoing, it is evident that the juvenile
court convicted minor of attempted second degree murder, not
just attempted murder. (See People v. Favor, supra, 54 Cal.4th at
p. 877 [the offense of premeditated attempted murder is not a
separate offense from attempted murder].) And it is possible that
the juvenile court did so on the erroneous assumption that minor
could be convicted on a theory of implied malice. (People v. Collie
(1981) 30 Cal.3d 43, 62 [conviction for attempted second degree
murder reversed because the trial court erroneously instructed
16
the jury that it need not find a specific intent to kill in order to
convict], superseded by statute on other grounds as stated in
People v. Champion (1995) 9 Cal.4th 879, 912–913.) After all,
that is what the People argued prior to the juvenile court’s
disposition.
The People further assert that the fact that the juvenile
court fixed minor’s crime at second degree murder does not mean
that the evidence only supported implied malice. Rather,
according to the People, the juvenile court “fix[ed]” minor’s
sentence at second degree murder in order to impose some sort of
reduced sentence. Nothing in the appellate record supports the
People’s contention. When the juvenile court sentenced minor, it
did not indicate that it was doing so in order to impose some sort
of lesser sentence.
In light of the foregoing, we reverse the juvenile court’s
true finding that minor committed attempted second degree
murder. Because minor was not sentenced on count 2 (assault
with a deadly weapon), the matter is remanded to the juvenile
court for resentencing on count 2 and any applicable
enhancements.
II. The juvenile court properly excluded the additional evidence of
the victim’s prior aggressive conduct
Minor contends that the juvenile court erred in excluding
certain evidence of Colgan’s prior aggressive and volatile conduct,
which deprived him of his constitutional right to present a
complete defense of self-defense. Specifically, minor argues that
the juvenile court should have (1) admitted into evidence the
videotape showing Colgan banging on his door, (2) allowed
Barajas to testify about a dispute between Colgan and minor’s
17
mother, and (3) allowed other family members to testify about
angry disputes they had witnessed involving Colgan.
A. Proceedings below
Minor argued that because Colgan had allegedly
inappropriately touched him, he stabbed him in self-defense to
get away. He further asserted that he stabbed Colgan in
response to Colgan grooming him and knowing that Colgan was
aggressive.
1. Video recording
In support of those claims, in a motion in limine, the
defense moved to introduce a video taken on minor’s phone of
Colgan banging on minor’s door. He argued that the video was
relevant because it showed that Colgan had a history of
aggressiveness, which explained why minor interpreted Colgan’s
behavior as a sexual assault and caused him to stab Colgan.
The People objected to the video as it lacked foundation,
was hearsay, and was irrelevant.
The juvenile court viewed the approximately one-minute
long video and found it not relevant. Later, minor again
requested to show the video. The juvenile court found that in lieu
of admitting the recording, minor could testify about what he saw
and heard firsthand.
Minor testified that he had recorded Colgan banging on his
door on this particular occasion because Colgan had banged on
their door in the past and they wanted evidence to show the
police. When the defense attempted to play the video, the
juvenile court reiterated that it had excluded the video. Minor
then testified as to why he made the recording and the
circumstances surrounding it.
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Later in the proceedings, minor again requested to
introduce the video. The juvenile court again denied the request,
stating that minor’s testimony about what he saw and heard was
sufficient.3
2. Witness testimony about an altercation between
Colgan and minor’s mother
During motions in limine, the prosecution moved to bar
testimony from Barajas, the family social worker, concerning an
altercation between Colgan and minor’s mother.4 At that time,
the juvenile court indicated that it would “take [the witnesses]
one at a time.”
Later, during the proceedings, the People requested that
the juvenile court rule on the motion. Minor stated that he
intended to introduce testimony concerning a verbal dispute in a
parking lot between Colgan and his mother to show Colgan had a
history of aggressiveness, which supported his interpretation of
Colgan’s behavior as a serious threat when minor stabbed him.
The juvenile court asked when that verbal alteration occurred.
Minor responded sometime prior to November 12, 2017, but he
did not know the precise date. The juvenile court made a
preliminary ruling that the evidence was not relevant, but
reserved the matter for when the issue came up in testimony.
3 Subsequently, minor asked that his two sisters be allowed
to testify about the incident where Colgan was violently banging
on the door and yelling. The juvenile court denied that request.
4 The prosecution also sought to bar testimony from another
person who had apparently witnessed the incident between
Colgan and minor’s mother.
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When Barajas was testifying, minor asked whether she had
witnessed an incident between Colgan and his mother. After the
People objected, the defense explained that the evidence was
relevant to prove a character trait of Colgan. The juvenile court
found that Barajas’s testimony was (1) inadmissible hearsay
because minor had not observed the incident, and (2) irrelevant.
3. Minor again requests that these witnesses be
allowed to testify
After minor testified, he again requested that Barajas and
certain family members be allowed to testify concerning Colgan’s
erratic and violent behavior, which included the event that he
had recorded. The juvenile court rejected the request. Minor
argued that the juvenile court was not allowing any evidence to
show Colgan had ever been violent or had problems with him and
his family. The court explained that the proffered evidence was
irrelevant: “The issues here are very clear, very clear, [defense
counsel]. You know what the petition alleges. You know what
both counts are. We heard your defense. Now, we have to come
to a conclusion and resolve this matter. [¶] . . . [¶] That
evidence is cumulative. We have heard it from your client over
many, many hours.”
B. Relevant law
“Only relevant evidence is admissible [citations], and all
relevant evidence is admissible, unless excluded under the
federal or California Constitution or by statute.” (People v.
Scheid (1997) 16 Cal.4th 1, 13; see Evid. Code, §§ 350, 351.)
Relevant evidence is evidence that “tend[s] in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.)
20
Generally, evidence of a person’s character (including, for
example, a specific instance of his conduct) is inadmissible when
offered to prove his conduct on a specific occasion. (Evid. Code,
§ 1101.) However, Evidence Code section 1103 posits the
following relevant exception: “(a) In a criminal action, evidence
of the character or a trait of character (in the form of an opinion,
evidence of reputation, or evidence of specific instances of
conduct) of the victim of the crime for which the defendant is
being prosecuted is not made inadmissible by Section 1101 if the
evidence is: [¶] (1) Offered by the defendant to prove conduct of
the victim in conformity with the character or trait of character.”
In a prosecution for an assaultive crime where self-defense
is raised, the person acting in self-defense must actually and
reasonably believe that force was necessary to defend against
imminent harm. (People v. Humphrey (1996) 13 Cal.4th 1073,
1082; In re Christian S. (1994) 7 Cal.4th 768, 783.) While
evidence of the victim’s prior violent acts is admissible (Evid.
Code, § 1103, subd. (a)(1); People v. Shoemaker (1982) 135
Cal.App.3d 442, 446), the trial court may exclude such evidence if
it has no tendency to prove a material issue of disputed fact, such
as the defendant’s reasonable fear or the existence of some
present and imminent danger. (See People v. Boyette (2002) 29
Cal.4th 381, 428; People v. Minifie (1996) 13 Cal.4th 1055, 1068.)
Past acts of violence that threaten some vague, unspecified future
harm fail to provide grounds for self-defense. (See People v.
Humphrey, supra, 13 Cal.4th at p. 1082.) The record must
contain evidence that the victim was the aggressor or posed some
imminent danger during the current incident. (People v. Minifie,
supra, 13 Cal.4th at pp. 1067–1068.) Then and only then is the
21
evidence of the victim’s prior violent acts relevant to bolster a
claim of self-defense. (Ibid.)
“[A] defendant has no constitutional right ‘to present all
relevant evidence in his favor, no matter how limited in probative
value such evidence will be so as to preclude the trial court from
using Evidence Code section 352.’ [Citation.]” (People v.
Shoemaker, supra, 135 Cal.App.3d at p. 450; see also People v.
Cornwell (2005) 37 Cal.4th 50, 82, disapproved in part on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It
is well-established the trial court has broad discretion in
determining both the relevance of the objected-to evidence and in
weighing its prejudicial effect against its probative value. (People
v. Harrison (2005) 35 Cal.4th 208, 229; People v. Sanders (1995)
11 Cal.4th 475, 512; People v. Rodrigues (1994) 8 Cal.4th 1060,
1124.) As such, a trial court’s ruling is not disturbed on appeal
“‘except on a showing the court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice. [Citations.]’” (Id. at pp. 1124–
1125.)
C. Analysis
1. No error
Applying these legal principles, we conclude that the
juvenile court did not abuse its discretion in excluding the
additional evidence. The juvenile court admitted evidence
relevant to minor’s state of mind to support his claim of self-
defense, including minor’s testimony that Colgan banged on his
door while yelling and demanding that his items be returned.
The evidence also included minor’s testimony that Colgan
grabbed him and brought him to his apartment to read the
tagging on his wall after his safe, which Colgan accused minor of
22
stealing, had been stolen. In light of this evidence, the juvenile
court acted well within its discretion when it refused the evidence
of the video recording of Colgan banging on minor’s door and his
family witnessing the same episode as being cumulative.
The juvenile court also properly excluded the witnesses to
the verbal altercation between Colgan and minor’s mother—an
altercation that occurred outside of minor’s presence (and minor
may not have even been aware of). Minor never contended that
Colgan threatened anyone, including himself, during that
altercation. Given that yelling alone cannot provide a
justification for self-defense (People v. Johnston (2003) 113
Cal.App.4th 1299, 1308), the juvenile court did not abuse its
discretion in excluding evidence of the victim yelling at a third
party on an unspecified date outside the presence of the charged
offender to show that offender’s state of mind.
2. No prejudice
In any event, minor was not prejudiced by the juvenile
court’s refusal to admit the recording or his family members’
testimony about the same incident. Refusing to admit
cumulative evidence is not prejudicial. (People v. Harris (1989)
47 Cal.3d 1047, 1093; McCarthy v. Manhattan Beach (1953) 41
Cal.2d 879, 895.)
Nor was minor prejudiced when the juvenile court refused
to hear testimony concerning Colgan’s verbal altercation with
minor’s mother because that evidence would have had no bearing
on minor’s subjective state of mind for purposes of self-defense.
“The subjective elements of [perfect] self-defense and
imperfect self-defense are identical. Under each theory, the
appellant must actually believe in the need to defend himself
against imminent peril to life or great bodily injury.” (People v.
23
Viramontes (2001) 93 Cal.App.4th 1256,1262; People v. Oropeza
(2007) 151 Cal.App.4th 73, 82 [same].) What distinguishes the
two theories is that perfect self-defense includes, but imperfect
self-defense lacks, the requirement that the belief be reasonable.
(People v. Viramontes, supra, at p. 1262.) Since the subjective
elements of perfect and imperfect self-defense are identical (ibid.)
(and lacking any reasonableness requirement), it follows the
defendant may use deadly force in imperfect self-defense as long
as the use of such force is motivated only by a fear and belief that
it is necessary to prevent the party’s death or great bodily injury.
In other words, the defendant must have acted under the
influence of such fear alone. (See People v. Trevino (1988) 200
Cal.App.3d 874, 879 [“The party killing is not precluded from
feeling anger or other emotions save and except fear; however,
those other emotions cannot be causal factors in his decision to
use deadly force”].)
Here, minor’s actions in stabbing Colgan 20 to 45 times,
including in his chest, his abdomen, and his back, showed that
minor did not act out of fear alone; he did not seek to just stop
Colgan from hurting him, but sought to punish him. (Villines v.
Tomerlin (1962) 206 Cal.App.2d 448, 457 [“Self-defense may be
resorted to in order to repel force, but not to punish”].) Therefore,
testimony about a verbal altercation between Colgan and minor’s
mother, an altercation that minor may or may not have been
aware of, would not have aided his self-defense claim.
III. The juvenile court properly excluded the additional evidence
of Colgan’s sexual misconduct
Minor contends that the juvenile court abused its discretion
when it excluded additional evidence of Colgan’s sexual
misconduct.
24
A. Proceedings below
The juvenile court admitted evidence of Colgan’s conviction
of indecent exposure under section 314 and the requirement that
he register as a sex offender under section 290. The evidence was
presented in the form of Colgan’s testimony and the court records
concerning his conviction. The juvenile court denied minor’s
request to examine Colgan about the details surrounding the
charge. The juvenile court also excluded evidence that Colgan
allegedly masturbated in front of minor’s younger brother.
B. The juvenile court did not err
Minor complains of the exclusion of additional details of the
charged act and the uncharged act involving his younger brother,
which were probative of the victim’s violent character, denied
him his right to present his self-defense claim. However, as
discussed above, even assuming minor’s claims are true, because
minor was not in imminent danger of death or great bodily injury
when Colgan allegedly touched his thigh and moved his hand
toward his genitals, this additional evidence was inadmissible.
“[I]f it clearly appears that the defendant was the aggressor or
that he was in no imminent danger of death or great bodily harm,
evidence of prior acts of violence upon other persons by the
deceased is not admissible.” (People v. Soules (1940) 41
Cal.App.2d 298, 307.) “The trial court has a sound discretion to
determine from all of the facts and circumstances adduced
whether a prima facie showing of good faith on the part of the
defendant has been established sufficiently to warrant the
reception of evidence of prior acts of violence upon other persons
by the deceased.” (Ibid.)
Nevertheless, the juvenile court did admit evidence of
Colgan’s conviction of indecent exposure and that he was a
25
registered sex offender, including the court records on the
conviction. Therefore, contrary to minor’s assertion otherwise,
ample evidence was admitted to aid in his self-defense claim.
The juvenile court only refused to allow minor to examine Colgan
about the details of the conviction as it would have been
cumulative, and refused to admit minor’s brother’s allegation
against Colgan.
The juvenile court had sufficient evidence of Colgan’s past
misconduct to understand minor’s claim that he was on
heightened alert when Colgan touched him because he believed
that Colgan was a predator. The juvenile court heard and
understood that minor feared Colgan. The juvenile court
understood minor’s defense and considered it. It follows that the
juvenile court was not required to admit additional evidence to
show minor’s state of mind. (People v. Soules, supra, 41
Cal.App.2d at p. 307.)
Moreover, minor was not prejudiced by the juvenile court’s
decision. As set forth above, the requested evidence would not
have shed any additional light on minor’s claim of self-defense.
IV. The juvenile court did not abuse its discretion in permitting
evidence of minor’s gang membership
Minor contends that the juvenile court erred in permitting
impeachment of his testimony with evidence of his gang
association and in refusing rebuttal evidence.
26
A. Proceedings below
Minor sought to exclude the reference made to his
association to a gang in the 9-1-1 call made by Colgan’s sister.
The juvenile court granted his request and struck the phrase
“gang member” from the transcript.
During cross-examination of minor, the prosecutor asked
him whether he felt Colgan had disrespected him. Minor
answered in the affirmative. Over defense objection, the
prosecutor asked whether he was a member of the gang Newhall
13. The juvenile court found that the People could introduce
evidence of whether minor was a gang member solely for
impeachment purposes to counter his state of mind claim. Minor
admitted that he had been a member during the attack, but
denied being a current member. Over defense objection, the
prosecutor asked minor whether he had thrown gang signs while
currently being detained. Minor replied that he had not. Over
defense objection, the prosecutor showed minor a photograph of
him throwing a gang sign while in detention. Minor admitted
that the photograph was of him. The prosecutor asked minor
what his tattoos meant, and he testified that they stood for New
York Yankees. Over defense objection, the prosecutor asked
whether they stood for Newhall Youngsters, and minor answered
in the affirmative.
Minor moved to strike the gang evidence, arguing
prosecutorial misconduct in presenting irrelevant prejudicial
evidence. The juvenile court denied the motion.
Minor requested to recall Colgan’s sister to testify about
her knowledge of minor’s membership in a gang, and to recall
Colgan to testify whether he knew minor was a member of a gang
27
and, if so, why he continued to allow minor in his home. The
juvenile court denied the request.
B. Relevant law
As set forth above, only relevant evidence is admissible.
“[T]he decision on whether evidence, including gang evidence, is
relevant, not unduly prejudicial and thus admissible, rests within
the discretion of the trial court. [Citation.] ‘Where, as here, a
discretionary power is statutorily vested in the trial court, its
exercise of that discretion “must not be disturbed on appeal
except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice. [Citations.]” [Citation.]’
[Citations.] It is appellant’s burden on appeal to establish an
abuse of discretion and prejudice.” (People v. Albarran (2007) 149
Cal.App.4th 214, 224–225.)
C. Analysis
1. No error
Here, the juvenile court did not err in admitting evidence of
minor’s gang membership and in excluding minor’s rebuttal
evidence. The juvenile court was entitled to consider minor’s
gang membership to determine his state of mind as being
disrespected, rather than being fearful. (Evid. Code, § 780,
subds. (c), (f), (j).) The probative value of the evidence was not
substantially outweighed by the probability that its admission
would create substantial danger of undue prejudice, of confusing
the issues, or of misleading the court. (Evid. Code, § 352; People
v. Ewoldt (1994) 7 Cal.4th 380, 404, superseded by statute on
other grounds as stated in People v. Robertson (2012) 208
Cal.App.4th 965, 991.)
28
Moreover, neither of the requested rebuttal witnesses
would have assisted the court in deciding whether Colgan had
groomed and sexually assaulted minor, which then resulted in
minor defending himself with a knife. Regarding Colgan’s sister,
minor does not explain how what she knew about minor’s gang
membership was relevant to any of the issues in this case.
Regarding Colgan, if he had said that he knew that minor was a
gang member, but continued to ask him for help because he was
his neighbor, such evidence would not necessarily have bolstered
minor’s claim that Colgan must have been grooming him. In fact,
minor had already testified that Colgan asked him to decipher
gang tagging on his wall, which strongly suggested that Colgan
knew of minor’s gang membership, and continued to ask him to
help him do chores. Further testimony on this fact was
unnecessary and cumulative.
2. Any error would have been harmless
In any event, any error in allowing the gang evidence was
harmless. It is not reasonably probable that a result more
favorable to minor would have occurred had the objectionable
evidence not been admitted.5 (People v. Bojorquez (2002) 104
Cal.App.4th 335, 345.)
The only issue in this case was whether minor’s attack of
Colgan was in self-defense. Because of the limited issue at trial,
minor’s gang affiliation was not prejudicial as it had no real
bearing on that issue. This was not a gang-related case. There is
5 The purported error was not prejudicial under any
applicable standard. (People v. Watson (1956) 46 Cal.2d 818, 836
[reasonable probability standard for state law error]; Chapman v.
California (1967) 386 U.S. 18, 24 [stricter beyond-a-reasonable-
doubt standard for federal constitutional error].)
29
no reasonable probability that, had the evidence of minor’s gang
membership been excluded, minor would have secured a more
favorable result. Assuming minor was telling the truth, that
Colgan touched his thigh and slid his hand up to his groin and
then swung his cane at minor, the only issue is whether the force
minor inflicted on Colgan was proper self-defense or punishment.
As discussed above, given the length and intensity of the attack,
it was not self-defense. Minor’s use of force went well beyond
what was reasonable under the circumstances.
V. No cumulative error
Minor contends that the cumulative effect of the alleged
errors violated his right to due process and was not harmless
beyond a reasonable doubt. However, as set forth above, the
juvenile court did not commit any of the alleged errors during
trial; and, even if it had, minor has failed to show that he was
prejudiced by those claimed errors. (See People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 308, 334; People v. Famalaro (2011)
52 Cal.4th 1, 44; People v. Phillips (2000) 22 Cal.4th 226, 244.)
A defendant is guaranteed a fair trial, not a perfect one.
(People v. Cunningham (2001) 25 Cal.4th 926, 1009.) The record
here shows that minor received a fair trial. (See People v. Montiel
(1993) 5 Cal.4th 877, 944, overruled in part on other grounds as
stated in People v. Perez (2020) 9 Cal.5th 1, 9 [errors do not
require a reversal whether considered singly or together as they
had a minimal impact on the overall fairness of the defendant’s
trial].)
30
DISPOSITION
The conviction on count 1 is reversed. The matter is
remanded for resentencing on count 2 and any applicable
enhancements. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
______________________, J.
CHAVEZ
______________________, J.
HOFFSTADT
31