Filed 3/30/16 P. v. Aparicio CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
ARTURO ORTEGA APARICIO , Defendant and Appellant

. G05 2387 (Super. Ct. No. 14NF1885 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy , Judge. Affirmed.

Arielle Bases , under appointment by the Court of Appeal, for Defendant
and Appellant

.

No appearance for Plaintiff and Respondent.

* * *2 A jury convicted defendant Arturo Ortega Aparicio of assault with a deadly
weapon (Pen. Code , § 245 , subd. ( a ), all further references are to this code) . The court placed defendant on probation on various conditions, including 90 days in jail, and
order ed defendant to stay away from the victim and his family.

We appointed counsel to represent d efendant on appeal. Counsel filed a brief summarizing the proceedings and facts of the case and advised the court s he found no arguable issues to assert on defendant ’s behalf. ( Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.)

To assist us in our independent review of the record, counsel suggested we
consider the issues discussed below . Defendant file d a supplemental brief on his own
behalf , which we will also discuss below.
FACTS We recite the facts in the light most favorabl e to the judgment, drawing all reasonable inferences in support thereof. ( People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Villasenor (2015) 242 Cal

. App.4th 42, 47

- 48.) Defendant and the victim, Omar Castillo, live in adjacent apartment complex es

. Their garages face one another and are separated by an alley.

One day Castillo was walking towards his garage with his wife, 12

- year

- old son, and baby. Defendant was outside his garage with a friend

. D efendant was sharpening a long knife and defendan t and his friend were looking at Castillo in a threatening way (“mad

- dogging”). C astillo walked towards defendant to ask if there was a problem.
D efendant cursed Castillo and started swinging a hammer at him. Castillo backed away, but defendant pressed forward. Defendant swung the hammer at Castillo
four or five times and hit him on ce

. Castillo then punched defendant in the right eye. Defendant became upset and threw the hammer at Castillo. Castillo dodged the hammer.3 D efendant next began trying to stab Castillo with a switch blade knife. Defendant chased Castillo who backed away from him and into a parked car. Castillo fell
on the trunk of the car and then onto the floor

. At some point defendant stabb ed Castillo in the leg with the knife and inflicted a two inch laceration

. D efendant continued try ing
to stab Castillo until another neighbor pulled defendant off Castillo

.

Castillo’s 20

- year

- old daughter was in her bedroom when her little brother
ban ged on her window and told her to call 911 because her father was being attacked. She ran outside and called the police. Castillo’s wife said defendant still scared her and
she was afraid to testify because she wa s scared he will hurt them. At the time of trial
d efendant was still giving her scary looks.

Defendant testified to a different version of the assault in which he was the victim, not the aggressor. Other neighbors testified they too had conflicts with Castillo.
DISCUSSION
We have independently reviewed the entire record according to our obligations under Anders v. California , supra , 386 U.S. 738 and People v. Wende , supra , 25 Cal.3d 436 , but found no arguable issues on appeal

.

(1) Counsel suggests we consider whether the prosecu tor committed misconduct in questioning Castillo . O ver defense objection s ( argumentative, asked and
answered ) , the p rosecutor elicited testimony from Castillo that he was “different” from his neighbors in the sense that he was a “proud American , ” and he w aives an American flag at home

. We perceive no prosecutorial misconduct in these questions

.

(2) Counsel suggests we consider whether the court erred in allowing
Castillo to testify to his level of Americanism as reflected in the testimony cited in the preceding paragraph. Sh e suggests this evidence was ir relevant, or at least should have
been excluded under Evidence Code section 352 (section 352)

. But no objections on those specific grounds were stated in the trial court, so even if they had merit they could not be a basis for reversal. (Evid. Code, § 353, subd. (a).)4 (3) Counsel suggests we consider whether defendant’s statements to the responding police o fficers that the knife was in his garage were inadmissible because they were obtained i n violation of Miranda v. Arizona (1966) 384 U.S. 436

. But a gain no
such objection was stated in the trial court , so even if it had merit it could not be a basis for reversal. (Evid. Code, § 353, subd. (a); People v. Crittenden (199 4) 9 Cal.4th 83 , 1 16 [ Miranda based claims are governed by this rule].) And, in any event, the record provided to us does not reveal whether defendant made thes e statements during a custodial interrogation. ( Miranda v. Arizona , supra , 384 U.S. at p. 444.)

(4) Counsel sugges ts we consider whether the court erred by overruling defendant’s hearsay objection and allowing Castillo ’s daughter to testify that her brother banged on her window and told her to call 911 because their father was being attacked.
Sh e suggests this wa s inadmissible testimonial hearsay . ( Crawford v. Washington (2004) 541 U.S. 36. ) Once more no objection on these specific grounds was stated in the trial court, so it could not be a basis for reversal. Further, this testimony wa s relevant
for the nonhearsa y purpose of explaining what she did next (i

. e

. call 911 and run outside to witness the ongoing assault) so it wa s admissible under Crawford . ( Id . at p. 60, fn. 9.)

(5) Counsel suggests we consider whether the court erred by allowing Castillo’s wife to testify she still feared defendant

. He s uggests this evidence s hould
have been excluded under section 352. We conclude t h e trial court did not abuse its
broad discretion to admit this evidence

. ( People v. Holford (2012) 20 3 Cal.App.4th 155,
167 [Trial court’ s exercise of discretion under section 352 will not be disturbed on appeal except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice] .)

(6 ) Counsel suggests we consider whether the court erred by giving , without objection, CALCRIM No. 371

– “Consciousness of Guilt: Suppression and
Fabrication of Evidence

. ” This instruction was properly given based on the evidence that
defendant to ld the police officers the knife was in his garage but it was never found.5 (7 ) Counsel suggests we consider whether the court erred by giving , over defendant’s objection, CALCRIM No. 3472

– “Right to Self

- Defense: May Not Be
Contrived

. ” This instruct io n was properly given based on Castillo ’s testimony that defendant and his friend were looking at Castillo in a threatening way before assault

.

(8 ) Counsel suggests we consider whether the court imposed invalid probation terms because, “C ourts have con sistently emphasized the importance of narrowing any no

- contact orders. ” ( See People v. Ponce (2009) 173 Cal.App.4th 378,
385 .) Th e court here orally ordered defendant “not to initiate any contact with Omar Castillo or his family or his wife or kids.” The court a pparently also signed a written protective order which required defendant to stay at least 25 feet from Castillo , but that
order wa s not included in the record provided to us. T he se no contact orders do not appear to be impermissibly overbroad.

(9) Defendant ’s supplemental brief essentially reargues the facts and reiterates his contention that he was the victim not the aggressor. The jury considered and rejected these arguments and it is not our role to reweigh the evidence.
DISPOSITION
T he judgment is affirmed.

THOMPSON, J.

WE CONCUR:

ARONSON , ACTING P. J.

IKOLA , J.