People v. Erazo CA2/1

Filed 5/2/23 P. v. Erazo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B318350
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA094253)
v.
ANDREW ERAZO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard H. Kirschner, Judge. Affirmed with
directions.
Jennifer Peabody, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Marc A. Kohm and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
A jury convicted defendant Andrew Erazo of one count of
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) for
stabbing a man in the course of an altercation. The jury also
found that Erazo personally inflicted great bodily injury in the
commission of the offense. (Id., § 12022.7, subd. (a).) The court
sentenced Erazo to the low term of two years for the assault
charge, plus three more years for the great bodily injury
enhancement.
Erazo contends that the trial court erred by refusing a
defense request to instruct the jury on acts in lawful defense of
others (CALCRIM No. 3470), and that the court committed
judicial misconduct by failing to remain impartial in questioning
the victim. We find no prejudicial error and affirm Erazo’s
conviction. We agree with the parties regarding an error in the
abstract of judgment, and remand with directions to correct that
error.
FACTUAL BACKGROUND
Late in the morning on February 9, 2021, Alex H.1 was
delivering food to a client at an apartment building in Reseda as
part of his job working for a home-care company. A surveillance
video located at the front of the apartment building captured the
ensuing events. The surveillance footage shows Erazo and a
juvenile, Fernando E., standing on the sidewalk in front of the
building, with Alex’s van double-parked on the street in the
background.
In the video Alex stops briefly as he walks past the two
men. According to Alex, Fernando said to him, “That’s my food,”
1 Following the guidance of California Rules of Court, rule
8.90(b)(4), we refer to the victim by his first name and last initial.
2
and Alex told him it was not. Alex then walked up to the front
entrance, where he gave the food to its intended recipient. As
Alex went back toward his van, he again encountered the two
men. The video shows Fernando walking alongside Alex, who
again briefly pauses. Alex testified that Fernando called him
profanities and again said the food was his, but Alex ignored him.
Fernando left Alex alone for a moment as Alex returned to
his van and began preparing food for his next delivery. The
surveillance video shows Fernando approaching Alex at the van
while Erazo remains behind near the front gate of the apartment
building. According to Alex, Fernando first apologized, but then
attacked Alex from behind, punching him on the side of his head.
A palm tree blocks the surveillance camera’s view of this initial
part of the confrontation, but as the fight continues, the two
again become visible. In the portion of the fight visible in the
video, Alex moves forward with his arms extended while
Fernando backpedals until the two fall to the ground just out of
view of the camera. Alex testified that he was attempting to
defend himself while Fernando kept attacking him. Finally, Alex
pushed Fernando back until they both fell onto the sidewalk,
with Alex landing on top of Fernando. A witness who lived in the
building across the street testified that Alex was only trying to
defend himself.
Alex testified that he was trying to hold down Fernando’s
hands so that Fernando could not strike him when Erazo
approached and started hitting and kicking him. The
surveillance video shows Erazo intervening almost immediately
after Alex and Fernando fall to the ground. Erazo stands over
the two men and throws punches. Erazo then runs back to the
fence in front of the building and grabs the jacket he had left
3
there. Alex and Fernando remain obscured from view, but the
video shows Erazo standing over them, making punching and
kicking motions. Alex testified that Erazo struck him primarily
on his right side, but also on his left. He said that Erazo’s strikes
felt different, as if “something had broken my skin and had
entered my body.”
In the video, Alex manages to stand up, while Erazo and
Fernando back away. All three stoop to pick up items left on the
ground. According to Alex, Erazo took Alex’s phone, which had
fallen onto the ground. The video shows Erazo and Fernando
finally fleeing the scene with Alex staggering after them.
According to Alex, he yelled at the men to give back his phone,
and Erazo eventually threw the phone onto the street. Alex
returned to his van, at which point he realized he was bleeding
from his right side and fell to the ground.
An ambulance transported Alex to a hospital, where he was
treated for a broken rib, a partially collapsed lung, and wounds
requiring stitches on both sides of his body. He remained in the
hospital for three days recovering.
Police arrested Erazo and Fernando two days later and
found a folding knife in Fernando’s possession.
DISCUSSION
A. The Trial Court Did Not Err by Refusing to Instruct
on Defense of Another
At the close of evidence in the case, Erazo’s attorney
requested that the court instruct the jury on self-defense or
defense of another. The trial court refused the request on the
ground that there was no substantial evidence to support the
instruction. Erazo contends this was error, but we disagree.
Even if Erazo acted in defense of Fernando, there is no evidence
4
to show that he reasonably believed he needed to use potentially
deadly force against Alex.
“It is well settled that a defendant has a right to have the
trial court, on its own initiative, give a jury instruction on any
affirmative defense for which the record contains substantial
evidence [citation]—evidence sufficient for a reasonable jury to
find in favor of the defendant [citation]—unless the defense is
inconsistent with the defendant’s theory of the case [citation]. In
determining whether the evidence is sufficient to warrant a jury
instruction, the trial court does not determine the credibility of
the defense evidence, but only whether ‘there was evidence
which, if believed by the jury, was sufficient to raise a reasonable
doubt.’ ” (People v. Salas (2006) 37 Cal.4th 967, 982.)
We review a trial court’s failure to give an instruction de
novo (People v. Manriquez (2005) 37 Cal.4th 547, 581), resolving
any doubt in favor of the defendant (People v. Tufunga (1999) 21
Cal.4th 935, 944).
The doctrine of defense of others is an absolute defense to
criminal liability for assault crimes. (People v. Adrian (1982) 135
Cal.App.3d 335, 340 (Adrian).)2 It requires that the defendant
“reasonably believed that a third party was in imminent danger
of suffering bodily injury or of being touched unlawfully and to
have reasonably believed that the immediate use of force was
2 Adrian, like some of the other cases cited in this opinion,
involved self-defense rather than defense of others. (See Adrian,
supra, 135 Cal.App.3d at p. 340.) The two defenses are closely
related (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on
another ground by People v. Chun (2009) 45 Cal.4th 1172, 1201),
such that jurisprudence on one is generally applicable to the
other.
5
necessary to defend against that danger.” (People v. Abelino
(2021) 62 Cal.App.5th 563, 579, fn. 13.) In addition, the
defendant may use only such force as is reasonably necessary
under the circumstances. (People v. Pinholster (1992) 1 Cal.4th
865, 966, disapproved on another ground by People v. Williams
(2010) 49 Cal.4th 405, 459; accord, CALCRIM No. 3470.)
Erazo’s claim that he was entitled to an instruction on
defense of others fails because of the final requirement described
above. There was no substantial evidence to support a claim that
he “used no more force than was reasonably necessary to defend
against [the] danger” posed by Alex. (CALCRIM No. 3470.) Even
interpreted in the light most favorable to Erazo, the available
evidence—Alex’s testimony and the surveillance video—depicted
no more than an ordinary fistfight. Courts have occasionally held
that a defendant who uses a weapon against an unarmed or less-
well-armed attacker may be entitled to an instruction on self-
defense, but these cases involve situations where the defendant
might have been at serious risk without the weapon. (E.g.,
People v. Elize (1999) 71 Cal.App.4th 605, 615-616 [jury might
have believed that the defendant who fired a handgun “was
sought out and attacked by two angry women much larger than
he, that he was being beaten with pipes . . . , that one of the
women tried to take his handgun, and that he struggled with
that woman while the other continued to beat him”]; People v.
Jackson (1965) 233 Cal.App.2d 639 [defendant who used knife
had poor vision and was older and much smaller than the
unarmed attacker].) In this case, Alex appeared to be physically
larger than the teenage Fernando, but Erazo had no reason to
believe that Alex could have overpowered both Fernando and an
unarmed Erazo. There was no reasonable justification for Erazo
6
to run back to the building’s fence, where he grabbed his jacket
and presumably a knife, and to begin stabbing Alex.
Erazo notes that when a defendant acts in defense of
another, “reasonableness is tested from the point of view of the
defendant, not the point of view of the person being defended.
(People v. Randle, supra, 35 Cal.4th at pp. 999-1000.)” (People v.
Genovese (2008) 168 Cal.App.4th 817, 830.) Thus, “one coming to
the defense of others is protected by the mistake-of-fact doctrine
and may act upon the situation as it reasonably seems to be.”
(Ibid.) Erazo argues that he was at some distance when the
confrontation started, and suggests that his view was obscured by
obstacles just as much as the surveillance camera’s was.
This argument overstates the extent to which Erazo’s view
was obscured. Although Erazo stood between the camera and
Alex’s van and thus must have seen the initial confrontation from
a similar viewpoint, the camera was located much farther away,
and its view was partially blocked by a palm tree that was not in
Erazo’s line of sight. In addition, Erazo’s argument establishes at
most that he could not see how the fight started and did not know
that Fernando initiated it. By the time Alex and Fernando
moved to the sidewalk, Erazo was standing nearby and was well-
positioned to realize stabbing Alex was in no way reasonably
necessary in order to defend Fernando.
B. The Trial Court Did Not Commit Judicial
Misconduct in Questioning the Victim
Erazo contends that the trial court committed judicial
misconduct by playing the role of a second prosecutor in
questioning Alex about the attack. We disagree. Evidence Code
section 775 authorizes the trial court to “call witnesses and
interrogate them the same as if they had been produced by a
7
party to the action.” In this case, the trial judge did not violate
the obligation to be “ ‘ “ ‘temperate, nonargumentative, and
scrupulously fair’ ” ’ ” (People v. Holmes, McClain and Newborn
(2022) 12 Cal.5th 719, 818) in the questions he asked.
During cross-examination, defense counsel questioned Alex
about an apparent inconsistency in his testimony. Alex had
testified that at one point, “the impact [of] the punches [was] very
strong, at that moment as I was being punched I felt like
something had broken my skin and had entered my body,” but he
also stated that he never saw Erazo or Fernando holding a
weapon and was not aware he had been stabbed until he
returned to his van after the fight. Alex explained that “when I
was being punched and kicked the pain was totally different. At
that time I didn’t notice or realize.” On redirect, the prosecutor
asked Alex about the portion of the fight when he was on the
ground. Alex responded that Erazo “was on my right side and he
was hitting me on the right side. So most of the impact [was] to
my right side.” Alex then added, “And also they were hitting me
on my left side as well.” Up to this point, Alex had not stated
clearly which of his assailants had stabbed him.
When both the prosecution and defense stated that they
had no more questions, the trial court said, “I have a question or
two, sir.” The court then questioned Alex as follows:
“The Court: . . . You mentioned on cross-examination that
at some point you felt hard punches that were harder than what
you [had] received earlier; is that correct?
“The Witness: Yes.
“The Court: Did you receive those hard punches when you
were grappling with [Fernando] near your van?
“The Witness: No.
8
“The Court: Did you feel those hard punches coming from
[Fernando] when you were grappling with him on the sidewalk?
“The Witness: No.
“The Court: Did you feel those hard punches after [Erazo]
joined the attack?
“The Witness: Yes.
“The Court: How would you describe those hard punches in
terms of how they were different from the earlier punches you
had received?
“[Defense counsel]: I have to object to the court’s final
questioning.[3]
“The Court: I’ll note your objection and overrule it.
“The Witness: The first kick that he kicked my side at that
moment my body kind of like jolted or jumped because it was a
very hard kick. And I kind of, like, took myself back to the first
position a little bit. And the next punch I felt from [Erazo] I felt
it like it was a different kind of punch, I felt the difference.
“The Court: How was it different, if you can describe it[?]
“The Witness: [Fernando]’s punches were . . . like a regular
punch.”
Alex did not explain further exactly how Erazo’s punches
were different. The trial court offered both sides an opportunity
to question Alex further, but both sides declined.
3 The People contend that Erazo forfeited his claim of
judicial misconduct by raising only this single objection to the
trial court’s questioning. We disagree, as the objection was
arguably to all the court’s prior questioning, and the court’s
decision to overrule the objection might have made additional
objections appear futile.
9
Erazo argues that by engaging in this questioning, the trial
court “acted as a second prosecutor” to elicit important evidence
the prosecutor had failed to obtain, helping the prosecution prove
“that appellant was the person wielding the sharp object and
thus, personally inflicted great bodily injury.”
But a trial court does not commit judicial misconduct by
asking neutral questions that elicit testimony useful for one side
or the other. Instead, a court commits judicial misconduct by
appearing to take sides. Thus, in People v. Cook (2006) 39
Cal.4th 566, the Supreme Court rejected the defendant’s claim of
judicial misconduct, explaining that, “Although answers by two
witnesses . . . to the trial court’s questions may not have been
favorable to the defense, the questions themselves did not create
the impression that the court was allied with the prosecution.”
(Id. at p. 598.) Judicial misconduct occurs when the trial court
acts as an advocate. For example, in People v. Santana (2000) 80
Cal.App.4th 1194, the court found the trial court committed
misconduct by “repetitiously, disparagingly and prejudicially
question[ing] defense witnesses.” (Id. at p. 1207.) “By belaboring
points of evidence that clearly were adverse to [the defendant],
the trial court took on the role of prosecutor rather than that of
an impartial judge. By continuing this adversarial questioning
for page after page of reporter's transcript, the trial court created
the unmistakable impression it had allied itself with the
prosecution in the effort to convict” the defendant. (Ibid.)
Similarly, in People v. Perkins (2003) 109 Cal.App.4th 1562,
the court held that the trial court had engaged in prejudicial
misconduct by effectively cross-examining the defendant, showing
“egregious . . . bias against [the defendant] and partiality towards
the People.” (Id. at p. 1573.) After reviewing the transcript of
10
one instance of the trial court’s questioning, the Court of Appeal
concluded that “the judge’s intent was to elicit from [the
defendant] his admission that he knowingly and willfully violated
a court’s restraining order, and as such, impress on the jury a
judicial imprimatur of the People’s position.” (Id. at p. 1571.)
The transcript in this case contains no indication that the
court appeared to take sides in the trial. Erazo alleges that, “The
court’s line of questioning was presented to [Alex] and the jury in
such a way that it was clear the court was expecting him to
implicate [Erazo] as the person who stabbed him.” We disagree.
Erazo is correct that Alex’s testimony to that point had left an
ambiguity as to who had delivered the punches that were “very
strong” and “felt like something had broken my skin.” Erazo is
also correct that the missing information was crucial to his guilt
or innocence. But the transcript shows the trial court’s
questioning was designed to elicit the missing information, not to
encourage Alex to give a single correct or particular answer. Alex
could have just as easily answered that he did not know, or he
might have given an explanation that aided in Erazo’s defense.
Our Supreme Court has stated that “ ‘Evidence Code
section 775 “ ‘ “confers upon the trial judge the power, discretion
and affirmative duty . . . [to] participate in the examination of
witnesses whenever he believes that he may fairly aid in eliciting
the truth, in preventing misunderstanding, in clarifying the
testimony or covering omissions, in allowing a witness his right of
explanation, and in eliciting facts material to a just
determination of the cause.” ’ ” ’ [Citation.]” (People v. Holmes,
McClain and Newborn, supra, 12 Cal.5th at p. 818.) The trial
court’s questioning of Alex did not exceed those bounds, and the
court did not commit misconduct in its questioning.
11
C. The Abstract of Judgment Must Be Corrected by
Deleting the Restitution Fine
At Erazo’s sentencing hearing, the court elected not to
impose a restitution fine under Penal Code section 1202.4,
subdivision (b). The abstract of judgment, however, contains
conflicting information on this fine. At one point, it lists a $300
restitution fine, but later, it states that, “The court waives the
restitution fine and court fees.” “Where there is a discrepancy
between the oral pronouncement of judgment and the minute
order or the abstract of judgment, the oral pronouncement
controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
Both sides agree that the abstract of judgment must therefore be
corrected to reflect the court did not impose a restitution fine, and
we will order the trial court to do so upon remand.
12
DISPOSITION
The judgment of the trial court is affirmed. The trial court
is directed to prepare an amended abstract of judgment deleting
the $300 restitution fine from item No. 5 and to forward a
certified copy to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
13