Filed 6/28/16 P. v. Sanchez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068873
Plaintiff and Respondent,
v. (Super. Ct. No. SCS277932)
JUAN GILBERTO SANCHEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne
K. Moring, Judge. Affirmed.
Paul Stubb Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, for Plaintiff and Respondent.
A jury convicted Juan Gilberto Sanchez with one count of assault with force likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The trial court suspended
imposition of sentence and granted Sanchez three years of felony supervised probation,
directing him to serve 180 days in jail with custody stayed pending successful completion of probation. It also imposed various fines and fees. Sanchez appeals from the final
judgment under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), raising possible, but not arguable, issues. We offered
Sanchez the opportunity to file his own brief on appeal but he has not responded.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2015, then 75-year-old Jose Velasquez was driving his car and had
turned onto a residential street when he saw Sanchez standing in the street, blocking
Velasquez's car. Velasquez, who had not touched Sanchez with his vehicle, stopped his
car and Sanchez touched it. A witness standing about five feet away heard Sanchez say
to Velasquez, "Are you trying to roll me over?" The witness saw Velasquez exit his car
and walk around it toward Sanchez. Velasquez was not angry or yelling; he asked
Sanchez what was going on. When he got close to Sanchez they started screaming and
arguing. Sanchez started punching Velasquez, then dragged him to the ground and
punched him again. Velasquez was hit at least ten times, including in the left eye. He
did not hit or kick Sanchez or his car. The witness called police.
Chula Vista Police Officer Brian Racine responded to the call. He took
photographs of Sanchez's hands to show the injuries to his knuckles. He also took
photographs of Velasquez, who had blood all over his face. Velasquez ended up with a
black eye, a cut on his nose where his glasses were, and bruises on his eyebrow and
forehead. The left side of his face was swollen.
Before trial, Sanchez's counsel moved to prevent Velasquez from mentioning his
age. He maintained Velasquez's age was irrelevant to the offense, which was not elder
2 abuse and did not deal with any specific age. The prosecutor responded that the evidence
was necessary to the People's case; that the percipient witness to the assault had reported
to the 911 operator that the victim was an older man, which was why she was upset about
the incident, and that given that Velasquez was 75 years old, it was much more likely the
application of force to him would cause great bodily injury, an element of the offense:
"Whether they be 65, 75, 85 and you assault them and punch them multiple times in the
face, it is reasonably likely that an ordinary, reasonable person would understand that
there is a high probability you are going to cause great bodily injury to that person by
punching them in the face." The court inquired whether the evidence would be relevant
to a claim of self-defense, after which defense counsel argued the victim's age had no
probative value and would prejudice his client. Defense counsel agreed that the witness
to the incident could testify that Velasquez was older, but to give the exact age was
prejudicial in part because there was no evidence Sanchez knew Velasquez was 75. The
prosecutor further argued that the evidence went to the reasonableness of the force used
by Sanchez, and that on Sanchez's expected claim of self-defense, the jury would have to
assess whether Sanchez reasonably believed he had to use physical violence to protect
himself from a senior citizen.
The court denied Sanchez's motion, ruling Velasquez's age was relevant to a self-
defense claim as well as the basic elements of the assault charge, in which the age and
3 capabilities of Velasquez were to be considered. It further ruled that the probative value
of the evidence was not substantially outweighed by its prejudicial effect.1
At trial, the prosecutor played surveillance video of the incident to the jury. While
the video was playing, Velasquez described it as showing Sanchez trying to hit Velasquez
then chasing after him, and Velasquez falling to the ground, where Sanchez hit him
again.
Sanchez testified in his defense. According to Sanchez, he had returned home
from getting donuts with one of his daughters, and they had left his car and were about to
cross the street when he noticed Velasquez's car waiting. While they were trying to
cross, Velasquez's car bumped Sanchez's knee. Sanchez hit the hood of Velasquez's car
and asked if he was trying to run him over; Velasquez got angry and clenched his fist at
Sanchez. Sanchez told his daughter to leave. Velasquez then exited his vehicle saying,
"I'm going to teach you a lesson" and calling Sanchez a "son of a bitch." According to
Sanchez, Velasquez walked toward him and continued to insult him, telling Sanchez he
1 Specifically, the court reasoned: "[R]elevancy would be defined as any tendency to prove or disprove an issue in dispute. [¶] A self-defense instruction would be one in which the age and the capabilities of the victim would be relevant. [¶] Further . . . even the basic elements for [the offense of assault likely to produce great bodily injury], absent self-defense, still factor in the capabilities of the victim and the level of force that's reasonable in light of . . . any perceived threat or any application of force. It's just: What is the condition of this victim and how much force would result in the commission of a [Penal Code section] 245? [¶] So it's relevant evidence that should be admitted. [¶] And the only bar to that could be your [Evidence Code section] 352 objection, whether the probative value of that evidence is . . . substantially outweighed by the prejudicial effect . . . . And I don't find that to be the case. [¶] It may well be he comes in and he's 75 and he doesn't look 75. The jurors can decide that. [¶] But I find that it should not be my role to suppress a fact . . . that is relevant to . . . these proceedings." 4 was "going to kick [his] ass." As Velasquez approached, Sanchez threw a kick at him,
then Velasquez came forward again. Sanchez tried to kick him, and they fell to the
ground, where Sanchez punched Velasquez because Velasquez was grabbing his leg,
close to his genitals. Sanchez testified he punched Velasquez four times. Sanchez left
and went to his apartment, then came back outside to wait for police. He cooperated with
police and told them what happened.
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Filed 6/28/16 P. v. Sanchez CA4/1 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 ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068873
Plaintiff and Respondent,
v. (Super. Ct. No. SCS277932)
JUAN GILBERTO SANCHEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Dwayne
K. Moring, Judge. Affirmed.
Paul Stubb Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, for Plaintiff and Respondent.
A jury convicted Juan Gilberto Sanchez with one count of assault with force likely
to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The trial court suspended
imposition of sentence and granted Sanchez three years of felony supervised probation,
directing him to serve 180 days in jail with custody stayed pending successful completion of probation. It also imposed various fines and fees. Sanchez appeals from the final
judgment under People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California
(1967) 386 U.S. 738 (Anders), raising possible, but not arguable, issues. We offered
Sanchez the opportunity to file his own brief on appeal but he has not responded.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2015, then 75-year-old Jose Velasquez was driving his car and had
turned onto a residential street when he saw Sanchez standing in the street, blocking
Velasquez's car. Velasquez, who had not touched Sanchez with his vehicle, stopped his
car and Sanchez touched it. A witness standing about five feet away heard Sanchez say
to Velasquez, "Are you trying to roll me over?" The witness saw Velasquez exit his car
and walk around it toward Sanchez. Velasquez was not angry or yelling; he asked
Sanchez what was going on. When he got close to Sanchez they started screaming and
arguing. Sanchez started punching Velasquez, then dragged him to the ground and
punched him again. Velasquez was hit at least ten times, including in the left eye. He
did not hit or kick Sanchez or his car. The witness called police.
Chula Vista Police Officer Brian Racine responded to the call. He took
photographs of Sanchez's hands to show the injuries to his knuckles. He also took
photographs of Velasquez, who had blood all over his face. Velasquez ended up with a
black eye, a cut on his nose where his glasses were, and bruises on his eyebrow and
forehead. The left side of his face was swollen.
Before trial, Sanchez's counsel moved to prevent Velasquez from mentioning his
age. He maintained Velasquez's age was irrelevant to the offense, which was not elder
2 abuse and did not deal with any specific age. The prosecutor responded that the evidence
was necessary to the People's case; that the percipient witness to the assault had reported
to the 911 operator that the victim was an older man, which was why she was upset about
the incident, and that given that Velasquez was 75 years old, it was much more likely the
application of force to him would cause great bodily injury, an element of the offense:
"Whether they be 65, 75, 85 and you assault them and punch them multiple times in the
face, it is reasonably likely that an ordinary, reasonable person would understand that
there is a high probability you are going to cause great bodily injury to that person by
punching them in the face." The court inquired whether the evidence would be relevant
to a claim of self-defense, after which defense counsel argued the victim's age had no
probative value and would prejudice his client. Defense counsel agreed that the witness
to the incident could testify that Velasquez was older, but to give the exact age was
prejudicial in part because there was no evidence Sanchez knew Velasquez was 75. The
prosecutor further argued that the evidence went to the reasonableness of the force used
by Sanchez, and that on Sanchez's expected claim of self-defense, the jury would have to
assess whether Sanchez reasonably believed he had to use physical violence to protect
himself from a senior citizen.
The court denied Sanchez's motion, ruling Velasquez's age was relevant to a self-
defense claim as well as the basic elements of the assault charge, in which the age and
3 capabilities of Velasquez were to be considered. It further ruled that the probative value
of the evidence was not substantially outweighed by its prejudicial effect.1
At trial, the prosecutor played surveillance video of the incident to the jury. While
the video was playing, Velasquez described it as showing Sanchez trying to hit Velasquez
then chasing after him, and Velasquez falling to the ground, where Sanchez hit him
again.
Sanchez testified in his defense. According to Sanchez, he had returned home
from getting donuts with one of his daughters, and they had left his car and were about to
cross the street when he noticed Velasquez's car waiting. While they were trying to
cross, Velasquez's car bumped Sanchez's knee. Sanchez hit the hood of Velasquez's car
and asked if he was trying to run him over; Velasquez got angry and clenched his fist at
Sanchez. Sanchez told his daughter to leave. Velasquez then exited his vehicle saying,
"I'm going to teach you a lesson" and calling Sanchez a "son of a bitch." According to
Sanchez, Velasquez walked toward him and continued to insult him, telling Sanchez he
1 Specifically, the court reasoned: "[R]elevancy would be defined as any tendency to prove or disprove an issue in dispute. [¶] A self-defense instruction would be one in which the age and the capabilities of the victim would be relevant. [¶] Further . . . even the basic elements for [the offense of assault likely to produce great bodily injury], absent self-defense, still factor in the capabilities of the victim and the level of force that's reasonable in light of . . . any perceived threat or any application of force. It's just: What is the condition of this victim and how much force would result in the commission of a [Penal Code section] 245? [¶] So it's relevant evidence that should be admitted. [¶] And the only bar to that could be your [Evidence Code section] 352 objection, whether the probative value of that evidence is . . . substantially outweighed by the prejudicial effect . . . . And I don't find that to be the case. [¶] It may well be he comes in and he's 75 and he doesn't look 75. The jurors can decide that. [¶] But I find that it should not be my role to suppress a fact . . . that is relevant to . . . these proceedings." 4 was "going to kick [his] ass." As Velasquez approached, Sanchez threw a kick at him,
then Velasquez came forward again. Sanchez tried to kick him, and they fell to the
ground, where Sanchez punched Velasquez because Velasquez was grabbing his leg,
close to his genitals. Sanchez testified he punched Velasquez four times. Sanchez left
and went to his apartment, then came back outside to wait for police. He cooperated with
police and told them what happened.
Following the presentation of evidence, the court instructed the jury regarding
lawful self-defense as a defense to assault by means likely to produce great bodily injury.
Sanchez's counsel argued that the case "comes down to self-defense."
DISCUSSION
Appellate counsel indicates he is unable to identify any reasonably arguable issues
for appeal and has asked this court to review the record for error. (Wende, supra, 25
Cal.3d 436.) Pursuant to Anders, supra, 386 U.S. 738, counsel has identified the
following issue in order to assist the court in its search for error: "Did the trial court err
in denying [Sanchez's] motion to exclude evidence of the complaining witness's age?"
We have reviewed the entire record consistent with the mandate of Wende, supra,
25 Cal.3d 436, and Anders, supra, 386 U.S. 738. We have not identified any reasonably
arguable issues for reversal on appeal. Sanchez has been represented by competent
counsel on this appeal.
5 DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
HALLER, J.