Filed 6/24/13 P. v. Benitez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B243018
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA084254)
v.
JOHN GILBERT BENITEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael D. Carter, Judge. Affirmed.
Jamilla Moore, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant, John Gilbert Benitez, appeals from the judgment entered
following a jury trial which resulted in his conviction of simple battery (Pen. Code,
§ 242)1 and assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(1)), during the commission of which he personally inflicted great bodily injury
upon the victim who was not an accomplice to the offense (§ 12022.7, subd. (a)). The
trial court awarded Benitez five years probation, one condition of which was that he serve
the first 240 days in county jail. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution’s case.
In September 2011, Jannell Garkow had worked for almost two years in a “beer
bar” called The Bit on Live Oak Avenue in Arcadia. Garkow knew Benitez as a regular
customer at the bar. Garkow also recognized a man named Steve Wyatt as a customer
who came into the bar “once in a while.”
Garkow was working at the bar on the night of September 10, 2011. When she
started her shift at 6:00 p.m., Benitez was already there. Before Wyatt arrived at
approximately 10:00 p.m., Garkow had served Benitez between three and five beers.
When he got to the bar, Wyatt ordered a beer. However before he could drink it, a fight
broke out between the two men. Garkow did not see how the fight began, but when she
heard a noise, she turned and saw that Wyatt had “fallen back on the bar.” When Wyatt
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
got up, Benitez grabbed him by the neck or throat and started to hit Wyatt with his hand.
Wyatt‟s girlfriend approached Benitez and he hit her in the face with his fist. In the
meantime, Wyatt, who had fallen to his knees, attempted to get up. Benitez, however,
kicked Wyatt, who then lost consciousness for a short time. At this point, Garkow
walked around the bar, approached Benitez and told him to leave. Although it took
awhile, Benitez “left eventually.” Garkow then noticed Wyatt was “bleeding from his
head and his nose” and “[t]here was blood all over[.]” Wyatt indicated he was “a little
dizzy [and was acting as though] he wasn‟t sure what [had] happened.”
The bar has video surveillance cameras and a CD made from several of the videos
taken during the altercation between Benitez and Wyatt showed “contact” between the
two men. The CD showed Benitez push Wyatt, then showed Wyatt “get up and go
towards [Benitez] and [Benitez] put his . . . arm . . . around” Wyatt‟s neck. Although
Garkow did not recognize Wyatt in the CD, she believed it showed him falling because
she had actually seen him “fall down.”
After Benitez left the bar, Garkow, Wyatt‟s daughter and another customer took
Wyatt to the men‟s bathroom and, using a wet towel, attempted to “clean him up.” Wyatt
asked them, “ „What happened? Why did he do that?‟ ” A few minutes later, sheriff‟s
deputies arrived at the bar.
Steve Wyatt remembered going to The Bit on September 10, 2011. When he
arrived at the bar, Wyatt saw Benitez. Wyatt had seen Benitez on prior occasions, but
had never had a conversation with him.
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When Wyatt first arrived at The Bit on September 10, 2011, he and his girlfriend,
Maryann Rivera, sat down at the bar and Wyatt ordered a beer. Wyatt then went to the
restroom. Wyatt‟s daughter was supposed to meet Wyatt at the bar and, as he was
walking back from the restroom he was reading a text message he had received from her.
Because he was looking at his phone, Wyatt did not see Benitez and the two men bumped
into each other. Benitez said something to Wyatt which Wyatt did not understand, then
“gave [Wyatt] a two-hand shove” in the shoulders. Wyatt “flew up against the bar next
to [his] girlfriend[,] . . . put [his] phone down” and said “ „What the “F”?‟ ” When he
then got up and moved toward Benitez, Benitez “punched [Wyatt] in the face.” The next
thing Wyatt remembered was “[b]eing picked up off the ground.” He was bleeding and
someone had handed him a towel from the bar. Wyatt remembered “being in the
bathroom and looking in the mirror and wiping [his] face off with the towel.” After he
came out of the bathroom, Wyatt, who was “[d]azed and confused,” asked his girlfriend,
Rivera, who had called 911, “what [had] happened.”
As a result of the altercation, Wyatt was required to have 12 stitches around his
eye, suffered a laceration on his nose, had bruises around his neck and a black eye. In
terms of “lasting” effects, Wyatt attributed the fact he sometimes has “foggy days,” or
days when “things are [not] as clear as they used to be,” to the injuries suffered during the
altercation with Benitez. Moreover, Wyatt‟s eye did not heal “correctly.” According to
Wyatt, “[i]t stayed swollen and continued to ooze liquid” for approximately four months.
Wyatt also suffers from headaches and dizziness. These symptoms occur approximately
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once a week and affect his ability to walk and drive. Finally, Wyatt has an approximately
three-eighths inch scar on his nose and two “jagged” scars, each of which is between one-
half and three-quarters of an inch long, on his “eyebrow area.”
Deputy Sheriff Kyle Otis of the Los Angeles County Sheriff‟s Department and his
partner, Deputy Mikesell, were on patrol in a marked car when, at approximately
10:30 p.m. on September 10, 2011, they responded to a call directing them to The Bit
bar. There, Otis saw Benitez, who had been “detained pending an investigation.”
Benitez was hand-cuffed, taken into custody and placed in the back seat of a patrol car.
There, Otis advised him of his rights pursuant to Miranda2 and, after Benitez indicated
that he understood those rights, he told Otis he had been “attacked by a White male who
punched him in the right eye and he defended himself.” Benitez also indicated a White
female had “c[o]me at him” and he had again defended himself.
While at the bar, Otis had observed Wyatt‟s wounds. The deputy “saw a
laceration over [Wyatt‟s] left eye split open” and “he was bleeding profusely. [Wyatt
also] had . . . some kind of a knot on his nose.”
Benitez was transported to the jail, where Otis went through “his articles of
clothing [and] items of property.” Otis noticed there was blood on Benitez‟s shoes and
socks.
2
Miranda v. Arizona (1966) 384 U.S. 436.
5
b. Defense evidence.
Benitez testified he works as an “umpire and a day trader.” On September 10,
2011, Benitez went to a bar called The Bit in Arcadia. Benitez had drunk two or three
beers and had ordered another one while he was practicing at the shuffleboard table.
After throwing down a puck, he had backed up slowly. Benitez and Wyatt, whom
Benitez had never met before, “bumped into each other.” Wyatt said something which
Benitez did not understand and when Benitez asked for an explanation, Wyatt cursed at
him and “sprayed [him] with spit.” Benitez pushed Wyatt with his right hand, then
stepped back to avoid any “trouble.” Wyatt, however, fell back into the bar stools and,
when Benitez looked in that direction, he saw Wyatt place his cell phone on the bar, then
approach Benitez with a closed fist. Although he had hoped that the altercation was over,
at that point, Benitez “knew . . . [he] had to defend [him]self because [he] had no other
choice, and [he] swung back” at Wyatt. Wyatt hit Benitez in his right cheek, causing it to
bruise. Benitez then picked up Wyatt and “[wrestled] him to the ground.” As they were
fighting, Wyatt‟s girlfriend, Rivera, approached Benitez and kicked him in the left leg.
Wyatt, who was by this time on his knees, grabbed Benitez by both his legs. After
Benitez, who was still standing, was able to free his right leg from Wyatt‟s grasp, he
“backed up and . . . kick[ed] [Wyatt].” Benitez then walked out of the bar through the
back entrance.
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Benitez had “punched” Wyatt because “he was coming at [Benitez] in a
threatening manner [with] a closed hand fist.” Benitez felt Wyatt was going to hurt him
and he had to defend himself.
With regard to the blood found on his shoes and socks, Benitez explained: “Well,
Mr. Wyatt had me by the legs and blood was on my thigh dripping down towards my
sock, and it pooled . . . on the top of my sock and was just dripping down.” Benitez also
testified that, contrary to the deputy‟s testimony, Otis did not interview him at the scene.
The deputy simply handcuffed him and placed him in the back seat of a patrol car.
Rosanne Velarde had met Benitez through her husband approximately 15 years
earlier. She considered Benitez a friend. They had been to each other‟s homes and saw
each other approximately once a week. Velarde considered Benitez a “gentle man” who
did not get angry easily. In the 15 years she had known him, Velarde had never seen
Benitez become violent.
Brandon Cascarano knew Benitez because they both frequented The Bit bar.
Cascarano was at the bar on the evening of September 10, 2011 and he saw some of the
fight between Benitez and Wyatt. Cascarano was at the bar, facing the bar, when he
heard a commotion and voices. When he turned to see what was happening, Cascarano
saw Wyatt moving toward Benitez with his arm bent as though “he was going for a
punch.” Wyatt punched Benitez, who then hit Wyatt back. The two men were punching
at and wrestling with each other. Cascarano, who saw blood after the two men started to
hit one another, also saw Wyatt holding Benitez by the knees. Benitez broke free of
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Wyatt‟s grasp by backing up and “kind of kick[ing his leg] away from [Wyatt].” After he
had freed himself from Wyatt‟s grip, Benitez walked out the bar‟s back entrance.
2. Procedural history.
Following a preliminary hearing, on May 15, 2012 an amended information was
filed, the first count of which alleged that on September 10, 2011 Benitez committed the
crime of battery with serious bodily injury, a felony in violation of section 243,
subdivision (d). It was further alleged with regard to that count that the offense was a
serious felony (§ 1192.7, subd. (c)) requiring registration (§ 290, subd. (c)) and that time
imposed for the offense was to be served in state prison (§ 1170, subd. (h)(3)). In the
second count it was alleged that, on or about September 10, 2011, Benitez committed
assault by means of force likely to produce great bodily injury, a felony (§ 245,
subd. (a)(1)). It was further alleged as to that count that, because Benitez had personally
inflicted on the victim great bodily injury (§ 12022.7, subd. (a)), the offense was a serious
felony (§ 1192.7, subd. (c)(8)).
Before trial it was determined that Benitez faced a term of seven years in prison.
The People had made Benitez an offer of five years of formal probation, one condition of
which would be that he serve one year in county jail. Defense counsel indicated that
Benitez had counter-offered with a plea to misdemeanor battery and “straight probation,”
an offer the prosecution was not willing to accept.
8
At an Evidence Code section 402 hearing, the district attorney indicated Benitez
had suffered a conviction for violating section 415 in 2006.3 However, since the
prosecutor did not know the facts underlying the conviction, the trial court determined the
conviction “ha[d] no validity” or “weight.” In addition, it could be prejudicial. The jury
might conclude that, because Benitez had a prior misdemeanor conviction, “he [might] be
more likely to be guilty of [the present offense].”
At the same proceedings, the prosecutor disclosed that she had just recently
learned the victim in this matter had been arrested in 1982 for committing battery in
violation of section 242 and had been subsequently convicted of violating section 415.
Defense counsel, the prosecutor and the trial court all agreed that the conviction was too
remote to be relevant and, accordingly, it would not be mentioned at trial.
With regard to Wyatt‟s medical records, the trial court determined only portions of
the records would be allowed into evidence because much of the information contained in
them amounted to inadmissible hearsay. The prosecutor and defense counsel agreed to
prepare a stipulation regarding which portions of Wyatt‟s records would be presented to
the jury. However, there was one aspect of the records on which counsel could not agree.
It was indicated a CT scan showed Wyatt had suffered “a fracture of the superior aspect
of the nasal bone, but” it was “of uncertain age [although it] could be relatively acute.”
The prosecutor asserted, although one could not tell from the report how old the injury
3
Section 415 prohibits unlawfully fighting or challenging another person to fight in
a public place, maliciously and willfully disturbing another by loud and unreasonable
noise and using offensive words which are inherently likely to provoke an immediate,
violent reaction in a public place.
9
was, since the report indicated it “could be relatively acute,” it should be allowed. The
fracture could easily have resulted from the incident involving Benitez. Defense counsel,
on the other hand, argued the evidence was “speculative.” Counsel indicated there was
no expert testimony indicating the fracture “resulted from the 9/10/201[1] incident.”
Counsel continued, “It‟s simply a remark there is evidence in a CT scan of a fracture of
uncertain date. I think its prejudicial effect . . . outweighs any probative [value].” The
trial court determined, pursuant to Evidence Code section 352, the probative value of the
evidence outweighed any prejudicial effect it might have “because [it] seem[ed] to be a
neutral sentence that [could] be argued by both sides.” The court indicated it would
allow the evidence to be presented at trial.4
After the prosecution presented its case, defense counsel moved for “a judgment
of acquittal for insufficiency of the evidence[.]” (§ 1118.1.) Counsel argued the
testimony had not been convincing and the CD simply showed “people wrestling on the
4
The stipulation read in relevant part: “[T]hat Steve Wyatt was treated by Dr. Ivan
Rokos at Methodist Hospital. That he was admitted at 12:37 a.m. on September 11,
2011. That the results of the physical exam were as follows: [¶] His face [was]
significant for irregularly shaped stellate . . . laceration of his left eyebrow extending into
his left eyelid. This wound [was] about three centimeters long. The nose ha[d] an
abrasion in the mid aspect . . . , but there [was] no active nasal bleeding. . . . [¶]
Mr. Wyatt was diagnosed as having an open wound of the forehead in the area of the left
eyebrow and a nose abrasion. He received 12 stitches in his left eyebrow area. [¶] A CT
scan was performed and the results were examined by Dr. Leon Lis. The scan showed
some focal soft tissue swelling along the left lateral orbit area with tiny air bubbles in the
soft tissues consistent with the history of a laceration. The eyeball itself appear[ed]
intact. The CT scan also showed a fracture of the superior aspect of the nasal bone, but
this [was] only partially included [in] the study. [The fracture] is of uncertain age, but
could [have been] relatively acute.”
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floor.” Counsel indicated, at worst, “this [case presented] mutual combat.” The
prosecutor opposed the motion, asserting “there [was] no evidence . . . Mr. Wyatt ever
punched Mr. Benitez.” The trial court denied the motion “based on the evidence . . .
presented thus far . . . .”
After hearing the trial court‟s instructions and argument by the parties, the jury
retired to deliberate on the afternoon of May 17, 2012. At 12:11 p.m. on May 18, 2012,
the jury foreperson informed the trial court the jury had reached verdicts. After the
foreperson handed the verdict forms to the bailiff, who in turn handed them to the court,
the trial court indicated it “need[ed] to have the jury go back and take a look at the verdict
forms.” The court stated it wanted the jury to “take a look” at the forms, then referred the
jury to “jury instruction 3517.”5
Several minutes later, at 12:21 p.m., the jury returned to the courtroom. The
foreperson handed the verdict forms to the bailiff, who in turn handed them to the court.
The trial court then instructed the court clerk to read the verdicts. With regard to count 1,
the clerk read: [¶] “We, the jury, . . . find the defendant, John Gilbert Benitez, not guilty
of battery with serious bodily injury upon the person of Steve Wyatt in violation of . . .
section 243[, subdivision] (d) . . . .” The clerk continued, “Same title of court and cause,
count 1, verdict: [¶] We, the jury, . . . having found the defendant not guilty of battery
5
Jury Instruction No. 3517 reads in relevant part: “If all of you find that the
defendant is not guilty of a greater crime, you may find him guilty of a lesser crime, if
you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser
crime. A defendant may not be convicted of both a greater and lesser crime for the same
conduct.”
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with serious bodily injury, find the defendant, John Gilbert Benitez, guilty of simple
battery in that he did willfully and unlawfully use force and violence upon the person of
Steve Wyatt in violation of . . . section 242, a lesser crime than that charged in count 1 of
the information.”
With regard to count 2, the court clerk read: “We, the jury, in the above-entitled
cause, find the defendant, John Gilbert Benitez, guilty of assault by means likely to
produce great bodily injury on Steve Wyatt in violation of . . . section 245[, subdivision]
(a)(1) . . . . [¶] Further, we find true the allegation pursuant to . . . section 12022.7[,
subdivision] (a) that in the commission of the above offense the defendant personally
inflicted great bodily injury upon Steve Wyatt not an accomplice to the . . . offense.”
The clerk then polled the jury and, when asked, each of the 12 jurors indicated
these were their verdicts.
The trial court set sentencing for June 7, 2012, remanded Benitez with no bail and
ordered a probation and sentencing report. At proceedings held on June 11, 2012, the
trial court indicated it had “read and considered all of the declarations filed, along with
the People‟s Sentencing Memo and the Defense Statement in Mitigation, Statement in
Support of Probation, and Notice of Motion to Strike the Enhancement and Punishment.”
The court then heard oral argument from both the People and defense counsel. The
prosecutor asserted the crime had involved great violence and the victim suffered great
bodily harm. In addition, Benitez “endangered the safety of the numerous innocent
bystanders.” However, the prosecutor indicated that “[i]n light of the fact . . . the
12
defendant [had no] other substantial criminal history or felonies, the People [were]
recommending [the] midterm [of six years in state prison] instead of [the] high
term . . . .”
Defense counsel presented to the court Ulysses Gutierrez, a minister and director
of a Los Angeles County program which provides probationers with “probation services
and/or rehabilitation services.” Gutierrez indicated Benitez would be eligible for the
services, which included everything from “recovery program[s]” to programs “dealing
with anger management.” Gutierrez explained: “Our final goal is to work with the client
and the family to develop a comprehensive developmental plan. The plan stipulates that
the client has to report to us three times a week. Based on the client‟s needs, that could
also include drug testing through one of the agencies in our network.”
Benitez then addressed the court. He stated, in relevant part: “My intentions were
not to injure anybody, and I feel bad that Mr. Wyatt was injured. I don‟t know if he
received the information from the later point of the incident where I had called to make
sure he was okay and I returned back to the bar to check and confront the sheriff to make
sure everything was okay. And I tried to do it like a man, do the right thing. [¶] And
just reflecting on that, I am hoping . . . you find it in your heart that I‟m not a violent
man. I was trying to do the right thing. And in this case the jury decided and not in my
favor, so I am here at your mercy and hoping you would see that and you would view that
and read that.” Defense counsel then addressed the court and indicated “[p]robation
[was] the right thing to do.” Counsel continued, “This man has a negligible history of
13
any contact with law enforcement or any criminal history. His behavior over the years
has been unremarkable as far as the criminal justice system [is concerned]. He deserves a
chance to show this was an isolated incident . . . .”
After indicating this was not a “state prison” case, the trial court suspended
imposition of sentence and placed Benitez on probation for a period of five years, one
condition of which was that he serve the first 240 days in county jail. The court then
awarded Benitez presentence custody credit for 30 days actually served and 30 days of
good time/work time. The trial court ordered Benitez to pay a $200 restitution fine
(§ 1202.4, subd. (b)), a stayed $200 probation revocation restitution fine (§ 1202.44), a
$40 court security assessment (§ 1465.8, subd. (a)(1)) and a $30 criminal conviction
assessment (Gov. Code, § 70373). The trial court stayed imposition of punishment on the
great bodily injury enhancement and awarded Benitez 180 days of probation, the time to
run concurrently with that imposed for the felony, for Benitez‟s conviction of the
misdemeanor of simple battery. After setting a hearing at which it would be determined
how much restitution Benitez would be required to pay for the victim‟s injuries, the trial
court informed Benitez of the conditions of his probation, then ended the proceedings.
Benitez filed a timely notice of appeal on August 2, 2012.
CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record.
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By notice filed April 5, 2013, the clerk of this court advised Benitez to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully
with counsel‟s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
We concur:
KLEIN, P. J.
KITCHING, J.
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