P. v. Guerrero

Filed 8/20/07 P. v. Guerrero CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN GUERRERO and
CHARLIE ROYCE KEPHART,
Defendants and Appellants.
B187943
(Los Angeles County
Super. Ct. No. LA047140)
APPEAL from a judgment of the Superior Court of Los Angeles County, John S.
Fisher, Judge. Affirmed as modified.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant Steven Guerrero.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant Charlie Royce Kephart.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General,
Robert F. Katz, and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and
Respondent.

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I. INTRODUCTION
Defendants, Charlie Royce Kephart and Steven Guerrero, appeal from their
convictions for battery with serious bodily injury. (Pen. Code,1 § 243, subd. (d).)
Mr. Kephart also appeals from his conviction for mayhem. (§ 203.) Mr. Kephart argues:
the prosecutor improperly cross-examined Mr. Guererro; the trial court improperly
excluded evidence of the violent nature of the victim, Roger Sebastian Kreszchuk; the
trial court should have allowed two witnesses to testify as to the effect of a choke hold;
the evidence was insufficient; and there was instructional error. Mr. Guerrero raises a
sufficiency of the evidence contention and an instructional error argument. Defendants
adopt each other’s arguments. We affirm.
II. FACTUAL BACKGROUND
At approximately 11 p.m. on October 1, 2004, Mr. Kreszchuk was at the Le
Cannon bar. Mr. Kreszchuk spoke with Mr. Kephart. Later, Mr. Guerrero motioned to
Mr. Kephart. Mr. Guerrero placed his finger to his nose, and said “‘We’re going to get
some.’” Mr. Kreszchuk understood that to mean they intended to purchase cocaine.
Mr. Kephart told Mr. Kreszchuk they were going to get cocaine and asked, “‘So is that
okay with you?’” When Mr. Kreszchuk agreed, Mr. Kephart asked, “‘How much are you
looking to get?’” Mr. Kreszchuk responded, “‘About $20.’” The two men continued to
talk in a friendly way.
Approximately 10 minutes later, Mr. Kreszchuk and Mr. Kephart left the bar
together. Mr. Kreszchuk drove Mr. Kephart to an apartment complex. They went into an
apartment where a woman who seemed to know Mr. Kephart was present. The woman
1 All further statutory references are to the Penal Code unless otherwise indicated.

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told them: “‘I just want you to leave. I just want you to leave. Just go.’” Mr. Kephart
opened a beer and a large bag of marijuana. The two men smoked marijuana.
Thereafter, the woman entered the room a couple of times with her arms crossed over her
chest. She appeared to be annoyed with Mr. Kephart.
Mr. Kreszchuk and Mr. Kephart then left the apartment to buy cocaine.
Mr. Kreszchuk drove his 1998 Toyota Tacoma truck. Mr. Kephart gave Mr. Kreszchuk
directions, which caused them to drive in a “zig-zag[]” pattern. After 10 or 15 minutes,
Mr. Kephart directed Mr. Kreszchuk to pull over. Thereafter, Mr. Guerrero drove up in a
white Ford Explorer. Mr. Kreszchuk and Mr. Kephart got into Mr. Guerrero’s Ford
truck. Mr. Guerrero appeared annoyed, hostile, or mad. Mr. Guerrero drove at a high
rate of speed on the freeway before exiting at Coldwater Canyon. Mr. Guerrero was
drinking a Natural Light beer while driving. Mr. Kephart received a telephone call from
the cocaine dealer, who directed them to a meeting point. At approximately 3 a.m., the
truck stopped next to an individual on the sidewalk. Mr. Kephart got out of the truck
then motioned to Mr. Kreszchuk as if to say: “‘Okay. We’re going to make the deal
now.’” Mr. Kreszchuk gave the individual $20. In return, Mr. Kreszchuk received a
small package which he put in his breast pocket.
Mr. Kephart then spoke to another person in a low voice while glancing at
Mr. Kreszchuk. Mr. Kephart returned to the truck, blocking the door where
Mr. Kreszchuk sat. Mr. Guerrero was glaring at Mr. Kreszchuk. Mr. Kreszchuk became
frightened. Mr. Kreszchuk reached toward the left door, opened the lock, and walked
quickly away from the truck. Mr. Kreszchuk heard someone say, “‘Where is he going?’”
Mr. Kephart, who was walking behind Mr. Kreszchuk, yelled: “‘Where’s the cocaine?
Where’s the cocaine, man?’”
Mr. Kephart grabbed Mr. Kreszchuk’s shoulder. Mr. Kreszchuk pulled away from
Mr. Kephart. Mr. Kephart then punched Mr. Kreszchuk repeatedly in the head.
Mr. Kreszchuk returned the blows and wrestled with Mr. Kephart until they both fell to
the ground. Mr. Kreszchuk was able to get up and began to walk away. Mr. Kreszchuk

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heard a car speeding toward him. Mr. Guerrero drove up in his truck and flung open the
door. Mr. Guerrero gave chase to Mr. Kreszchuk while yelling: “‘You’re dead. You’re
fucking dead.’”
Mr. Guerrero began fighting with Mr. Kreszchuk. Within 10 to 15 seconds,
Mr. Kephart joined the altercation. Mr. Kephart pulled Mr. Kreszchuk to the ground.
Mr. Guerrero continued to “pummel” Mr. Kreszchuk. Mr. Kreszchuk was repeatedly
struck in his head and face. Mr. Kephart had Mr. Kreszchuk in a choke hold.
Mr. Kephart then bit off Mr. Kreszchuk’s ear. Mr. Kreszchuk heard Mr. Kephart say:
“‘Kick him. Just kick him.’” One of his assailants also bit Mr. Kreszchuk’s wrist.
Mr. Kreszchuk, who feared for his life, began to yell: “‘Help. Help. Help. Fire. Fire.
Fire. Fire.’” Mr. Guerrero said: “‘We have to leave. We have to go. We have to go
now.’” Mr. Kreszchuk could barely see because his eyes were swollen. Mr. Kreszchuk
hid in a nearby walkway, took off his shirt, and then ran away. Approximately five
minutes later, an ambulance arrived. Mr. Kreszchuk was taken to the hospital.
A physician was able to reattach the cartilage of Mr. Kreszchuk’s ear but not the
earlobe. At the time of trial, Mr. Kreszchuk’s ear lobe was missing. Mr. Kreszchuk’s
watch and key ring were missing after the attack. When he was later interviewed by the
police, Mr. Kreszchuk did not tell the officers about the cocaine transaction or driving
Mr. Kephart’s truck that evening. Mr. Kreszchuk did not want to be cited for driving
under the influence. He also did not want the police to look upon him as a “bad person.”
Mr. Kreszchuk wore a black shirt and pants on the night of the altercation.
Mr. Kreszchuk’s keys, which included a blue aluminum beer opener, were missing after
the attack. They were returned to him from police custody a few days after the attack.
Mr. Kreszchuk found a cellular telephone in his truck a few days after the incident.
Mr. Kreszchuk believed the telephone belonged to Mr. Kephart and turned it over to
Detective Kevin Stogsdill.
Jason Bradley Friedman was awakened at approximately 3 a.m. on October 2,
2004, by yelling outside his window. Mr. Friedman heard someone yell, “‘Get his keys,’

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or ‘Take his keys.’” Mr. Friedman looked out of his window, which was close to a
streetlight. Mr. Friedman saw two people fighting and then realized it was a “two against
one” altercation. Mr. Friedman telephoned the police while continuing to watch the
fight. Mr. Friedman saw one person on the ground holding an individual wearing a black
shirt, while a third man stood over them and may have punched or kicked toward the
ground. The man in the black shirt was screaming: “‘Help . . . My ear . . . Fire[.]’” Mr.
Friedman heard the other individuals say: “‘Kick his head,’ or, ‘Kick his face,’ . . . and,
‘Hold him down.’” Shortly thereafter, the two assailants drove away in a car. The third
individual got up and moved out of the street. Mr. Friedman viewed the altercation from
his third floor window. The altercation took place in the street directly below, which was
lit by a nearby streetlight. Nothing obstructed Mr. Friedman’s view.
Craig Stillman Edgerly was also awakened by the noise from the fight.
Mr. Edgerly heard a man shout, “‘You’re fucking with your life.’” The same individual
then said: “‘Kick him in the head.’ . . . Take his watch.’” Mr. Edgerly heard a different
man yell: “‘Help me. Help me.’. . . ‘Fire. Fire[.]’” Mr. Edgerly believed the victim’s
life was at stake. Mr. Edgerly went to the balcony of his second-story apartment and saw
a white man enter what appeared to be a white Ford Bronco. The white truck left quickly
and swerved over. Mr. Edgerly believed the driver was trying to run over a man who
was staggering. Mr. Edgerly believed the driver “wanted to kill” the victim. The man
who was staggering appeared to be in pain. Mr. Edgerly could see blood on the sidewalk
directly under the street light. Nothing obstructed Mr. Edgerly’s view. A police car
arrived immediately thereafter.
Los Angeles Police Officer Stephen Ohlrich was on patrol at approximately 3:15
a.m. on October 2, 2004, in the vicinity of Moorpark and Hazeltine Streets. Officer
Ohlrich saw a silhouette of a dark shadow in the middle of the street approximately 500
feet from his police car. Officer Ohlrich saw two individuals stand up and walk
northbound to what was later verified to be a Ford Explorer. The two men got into the
Ford. The Ford accelerated in a “U-turn fashion.” The Ford made a half U-turn and was

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directed towards the victim. Officer Ohlrich then pursued the Ford. Officer Ohlrich’s
partner, identified only as Officer Sandoval, checked the motor vehicle records on the
computer for warrants and the name of the registered owner. During that time, the
officers received a radio call regarding a robbery in the area.
After requesting assistance, Officer Ohlrich was able to stop the Ford in a nearby
strip mall. Mr. Guerrero, who was driving the Ford, wore a “whitish” blue shirt, and gray
pants. Mr. Kephart, the passenger in the Ford, wore: a blue shirt; blue pants; and white
and blue shoes. Officer Ohlrich ordered the two men out of the Ford. Officer Ohlrich
noticed a 12-pack box containing numerous cans of beer on the floorboard of the front
passenger area. Officer Ohlrich also noticed several open beer cans on both the front
driver and passenger areas and in the back compartment. No drugs were found in
defendants’ possession or in the Ford. Mr. Guerrero and Mr. Kephart were arrested. A
set of keys with a blue item attached was booked as Mr. Guerrero’s property.
Detective Stogsdill investigated the crime. Detective Stogsdill met with an officer
where the fight occurred. Detective Stogsdill observed a prominent blood stain at the
location, which was later photographed. Mr. Kreszchuk’s severed ear was recovered
from the street near a manhole cover. A blood trail from that location proceeded to the
curb, onto the sidewalk near the apartment complex, and further westbound on Moorpark
Street where Detective Stogsdill found a black shirt. The black shirt was stained with
blood. Photographs taken of the Ford driven by Mr. Guerrero showed blood smears on
the center console and on the interior of the driver’s inside door panel. A photograph of
Mr. Kephart’s face depicted blood stains to the right of his mouth. No cuts or scratches
were found on that area of Mr. Kephart’s face after the blood was removed with a sterile
cotton swab. Detective Stogsdill did observe an abrasion and bruising above
Mr. Kephart’s right eye. Detective Stogsdill saw another smaller abrasion to the top of
the left side of Mr. Kephart’s forehead. There were also abrasions to Mr. Kephart’s left
elbow, right arm, and right elbow. Mr. Guerrero had a slight abrasion on his forehead and
above his right eye, as well as one to his left elbow.

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On September 26, 2005, Deputy District Attorney Hilleri Merritt and Brent Smith,
a supervising investigator for the Los Angeles County District Attorney’s Office,
interviewed Mr. Kreszchuk. Ms. Merritt confronted Mr. Kreszchuk with the fact that
there were pieces missing in the time scheme of his statements regarding the events of
October 2, 2004. Mr. Kreszchuk admitted he had been untruthful with the police and
during his preliminary hearing testimony. Mr. Kreszchuk acknowledged he had been
intoxicated on October 2, 2004, and he had driven while under the influence of alcohol.
Mr. Kreszchuk also admitted that had been untruthful concerning the purchase of cocaine
and use of marijuana. Mr. Kreszchuk stated his attackers had taken his keys during the
altercation.
III. DISCUSSION
A. Evidentiary Issues
1. The prosecutor’s questions of Mr. Guerrero
a. alleged Doyle error
Mr. Kephart argues that the prosecutor improperly cross-examined Mr. Guerrero
about his post-arrest silence. (Doyle v. Ohio (1976) 426 U.S. 610, 616-619.)
Mr. Guerrero was cross-examined about the failure to tell the police that Mr. Kephart had
been the victim of an assault. Mr. Kephart further argues the trial court improperly
overruled defense counsel’s objection to the use of Mr. Guerrero’s post-arrest silence.
Thus, the jury was free to thereby infer Mr. Kephart’s guilt from Mr. Guerrero’s post-
arrest silence.

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b. factual and procedural background
Both defendants testified. Each claimed the Mr. Kephart was assaulted by Mr.
Kreszchuk. When the prosecutor cross-examined Mr. Guerrero, the following colloquy
occurred: “[Prosecutor]: Q Mr. Guerrero, so on the evening when you had come to the
aid of your best friend, Mr. Kephart, and you said you got into the car and you – the
white S.U.V. and you were so concerned for Mr. Kephart’s health and his safety and you
thought he was seriously injured you never told the police at all, did you, that Mr.
Kephart should go to the hospital and the severity of his beating, did you? [¶] [Counsel
for Mr. Kephart]: Objection, Your Honor. [¶] He has a Constitutional right not to say
anything to the police and that hasn’t been waived. And so any question relating to that
is highly prejudicial. [¶] THE COURT: Overruled. [¶] Q BY [Prosecutor]: Yes or
no? [¶] A Can you repeat the question? [¶] Q Yes. [¶] You said Mr. Kephart is your
best friend, your buddy in the entire world. [¶] You just witnessed him being severely
beaten and you said he was in your car. You feared for his health and you were maybe
going to direct him and take him to the hospital out of concern for his health and his well
being, but you never told the police that they should take him to the hospital or the
severity of Mr. Kephart’s beating, did you? [¶] [Counsel for Mr. Kephart]: Objection.
Lacking in foundation. Conclusionary in relationship to the severity and his conclusions
in relationship to what counsel was just stating. [¶] THE COURT: All right. Overruled.
[¶] Q [Prosecutor]: Yes or no? [¶] A With a gun pointed at you you don’t say much.
So no, I did not say anything. [¶] Q And at some point you were riding in the police car,
correct? [¶] A Yeah. Obviously. [¶] Q And from the time that you were riding in the
police car you still never said anything about Mr. Kephart’s condition, did you? [¶]
[Counsel for Mr. Kephart]: Objection. Assumes facts not in evidence that the police
asked him about – asked Mr. Guerrero about Mr. Kephart’s condition. [¶] THE
COURT: Overruled. [¶] Q [Prosecutor] Yes or No? [¶] A I was instructed of my
Miranda rights to remain silent and I did so. I said nothing the whole time of anything.”

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c. Mr. Kephart has no standing to assert any violation of Mr. Guerrero’s due process
rights
The United States Supreme Court has held that an accused’s silence following the
giving of the warnings described in the majority opinion in Miranda v. Arizona (1966)
384 U.S. 436, 444-445 may not be used to later impeach the defendant’s testimony at
trial. (Doyle v. Ohio, supra, 426 U.S. at pp. 616-619; see also Anderson v. Charles
(1980) 447 U.S. 404, 407-408; People v. Quartermain (1997) 16 Cal.4th 600, 619.) But,
the California Supreme Court has held: “The privilege against self-incrimination is, of
course, personal and may be asserted only by the holder. (Rogers v. United States (1951)
340 U.S. 367, 370-371; People v. Chandler (1971) 17 Cal.App.3d 798, 803.)” (People v.
Ford (1988) 45 Cal.3d 431, 439; see also People v. Badgett (1995) 10 Cal.4th 330, 343
[“It is settled that the accused has no standing to object to a violation of another’s Fifth
Amendment privilege against self-incrimination. [Citation.]”.) Mr. Kephart does not
have standing to assert Mr. Guerrero’s self-incrimination privilege rights.
d. Mr. Guerrero may not raise this issue
Only counsel for Mr. Kephart objected to the prosecutor’s inquiries. In order for
this issue to be raised, it would have been necessary for Miranda based objections to be
raised in the trial court. (Rogers v. United States, supra, 340 U.S. at p. 371; People v.
Ford, supra, 45 Cal.3d at p. 439.) Thus, Mr. Guerrero cannot assert a violation of his
Fifth Amendment rights.
e. Doyle does not apply to Mr. Guerrero’s pre-warning statements
In any event, the application of the questioning to Doyle is unclear. Doyle does
not apply when the arrestee has not been advised of his or her constitutional rights and

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the accused takes the stand. Then the unwarned arrestee may be impeached with his or
her silence. (Fletcher v. Weir (1982) 455 U.S. 603, 606-607; People v. O’Sullivan (1990)
217 Cal.App.3d 237, 240.) The cross-examination did not directly relate to
Mr. Guerrero’s statements made after he received the warnings pursuant to Miranda v.
Arizona, supra, 384 U.S. at pages 444-445. There was no evidence as to when
Mr. Guerrero was advised of his rights to silence and the advice of counsel. The
questions focused on the events immediately after Mr. Guerrero and Mr. Kephart were
arrested. For example, Mr. Guerrero responded to one question, “With a gun pointed at
you don’t say much.” Now Mr. Guerrero did state he refused to answer any questions
after being advised of his constitutional rights. But defendants presented no evidence
when that advisement occurred. And no direct question was asked by the prosecutor as
to any statement made by Mr. Guerrero after the advisement of rights. Under these
circumstances, even if Mr. Guerrero had preserved the issue and Mr. Kephart had
standing to assert the purported Doyle error contention, it is unclear that any violation
occurred. The questions were aimed at the time when the initial detention commenced or
in the immediate post arrest period where Doyle is inapplicable when the accused takes
the stand. It was Mr. Kephart’s burden as an appellant to establish error and this he has
failed to do. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573; People v.
$497,590 United States Currency (1997) 58 Cal.App.4th 145, 152-153.) Because the
record does no establish when Miranda warnings were given to Mr. Guerrero, the entire
issue has been forfeited.
f. no prejudice resulted
In any event, any error in overruling the prosecutor’s questions was harmless.
(Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818,
836.) Mr. Guerrero explained his failure to explain what occurred to the police stemmed
from a fear of incrimination. This testimony allowed the jurors to evaluate the

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defendants’ fear against the victim’s similar fears if Mr. Guerrero admitted that he had
been drinking while driving and purchasing cocaine. The verdicts did depend upon the
jurors’ assessment of the credibility of the victim and defendants’ testimony and the
testimony of independent witnesses. As the prosecutor argued, Mr. Edgerly and
Mr. Friedman, two uninvolved witnesses, heard the words: “‘Kick him in the head.
You’re fucking dead. You’re fucking with your life. Take his keys. Get his watch.’”
Mr. Edgerly testified that the white Ford driven by Mr. Guerrero was trying to run over
Mr. Kreszchuk. Mr. Kreszchuk’s keys were discovered in Mr. Guerrero’s pocket at the
time of booking. The prosecutor further argued: “ . . . Mr. Kreszchuk on the other hand
when he got up and when you look at the demeanor, there’s a jury instruction that says
you are the judge of the credibility of the witness and the character of their testimony. . . .
[¶] But when you look at who’s telling the truth look at who has the motive to lie.
Mr. Kreszchuk had nothing to lose. He has nothing to gain by lying on the stand. [¶] . . .
[¶] . . . [W]hat Mr. Kreszchuk says is supported, it’s corroborated by the physical
evidence and also by the statements of the witnesses, the independent witnesses.”
Finally, it is presumed the jurors followed the credibility instructions. (People v.
Ledesma (2006) 39 Cal.4th 641, 725; People v. Avila (2006) 38 Cal.4th 491, 574; People
v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband (1996) 13 Cal.4th 622,
714.)
2. Exclusion of evidence of Mr. Kreszchuk’s violent nature
a. factual and procedural background
Mr. Kephart and Mr. Guerrero argue that the trial court improperly excluded
evidence of Mr. Kreszchuk’s violent behavior. Mr. Kephart’s counsel called Randall
Herbert, a bar manager at the Le Cannon Bar, as a witness. Mr. Herbert testified that
some of his functions included providing security for the bar. Mr. Herbert recalled an

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individual with a Marine tattoo had been in the bar within the previous six to eight
months. Mr. Herbert did not specifically recall Mr. Kreszchuk’s name. Mr. Herbert was
asked the following question about the man with the Marine tattoo, “What are those
reasons that you recall this particular individual?” The prosecutor then objected, “I’ll
object as relevance if it’s after the October 2nd, ’04 date.” Defense counsel’s offer of
proof stated that Mr. Herbert had to remove Mr. Kreszchuk from the bar just prior to
Halloween. This was because Mr. Kreszchuk expressed a threat. More specifically,
Mr. Herbert would testify that on a prior occasion totally independent of the October 2,
2004 incident, Mr. Kreszchuk became drunk. Mr. Kreszchuk allegedly was “picking on”
and making profane statements to a woman who was a bartender. Mr. Herbert then asked
Mr. Kreszchuk to leave the bar. Mr. Kreszchuk then challenged Mr. Herbert to a fight.
However, Mr. Herbert was able to persuade Mr. Kreszchuk to leave without further
incident.
In sustaining the objection, the trial court noted: “I just don’t see the relevance of
this what I presume is some kind of character evidence of the victim to show some kind
of conduct that might have happened on the day in question in light of the uncontradicted
evidence that the victim was running from the scene and was being chased and the only
issue that you have is that he swung first. [¶] So I don’t see the proposed testimony
being helpful to the jurors in any way relative to this case. [¶] . . . [¶] Plus there’s a
significant issue of a difference of when it even happened. [¶] It sounds like it happened
way later after the incident. So that’s neither here nor there. Even on the merits I don’t
see it being close.”
b. the evidence could be properly excluded
The United States Supreme Court has held that a defendant is entitled to present
relevant evidence in support of his defense. (California v. Trombetta (1984) 467 U.S.
479, 485; Chambers v. Mississippi (1973) 410 U.S. 284, 302.) The California Supreme

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Court has explained though that the right to present relevant evidence is not unlimited:
“‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the
accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and
intrinsic power to exercise discretion to control the admission of evidence in the interests
of orderly procedure and the avoidance of prejudice. [Citations.] . . . .’” (People v.
Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835.)
Evidence Code section 11032 allows the defendant to introduce evidence of the character
or specific instances of conduct of the victim in limited circumstances. The California
Supreme Court has held: “‘The trial court has broad discretion in determining the
relevance of evidence [citations] . . . .’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th
936, 973, quoting People v. Scheid (1997) 16 Cal.4th 1, 14.) We examine the
admissibililty of the proffered evidence utilizing the deferential abuse of discretion
standard of review. (People v. Cox (2003) 30 Cal.4th 916, 955 [Evid. Code § 352];
People v. Rodriguez (1999) 20 Cal.4th 1, 9; People v. Alvarez (1996) 14 Cal.4th 155,
201.) No abuse of discretion occurred. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-
10; People v. Quartermain, supra, 16 Cal.4th at p. 626.) Here, the witness, Mr. Herbert,
was uncertain whether the alleged incident occurred before or after the offense in this
case. The witness told the defense investigator it occurred “just prior to Halloween . . . .”
Moreover, no actual violence occurred. As a result, the trial court could reasonably find
2 Evidence Code section 1103 provides in pertinent part: “(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. . . .” Evidence Code section 1101
precludes the introduction of a person’s character to prove his conduct on a specified
occasion.

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Mr. Kreszchuk’s propensity for violence would not have been demonstrated had
Mr. Herbert been allowed to testify further. No abuse of discretion occurred.
c. any error was harmless
Even if the exclusion of such evidence was in error, it is not reasonably probable
defendant would have enjoyed a more favorable verdict had the testimony been admitted.
(E.g., People v. Williams (1998) 16 Cal.4th 635, 673; People v. Watson, supra, 46 Cal.2d
at p. 836.) Mr. Herbert’s testimony would have demonstrated only that Mr. Kreszchuk
could be reasoned with when intoxicated, thereby reducing the likelihood that he was the
aggressor in the incident of October 2, 2004. There was no reasonable probability of a
different result.
3. Exclusion of choke hold testimony
a. factual and procedural background
Mr. Kephart argues that the trial court improperly excluded proffered “expert”
testimony regarding the effect of choke holds on a victim. On the day prior to the
commencement of trial in this case, Leslie Nadasi, Mr. Kephart’s attorney, expressed an
intention to call an investigator and a Marine Corps combat trainer. Mr. Nadasi
explained the two potential witnesses would offer opinions on the effects of choke holds
on an individual’s reactions. Mr. Nadasi stated the Marine’s name was on Mr. Kephart’s
witness list. However, the prosecution had not been provided with any indication of the
witness’s anticipated testimony. The trial court indicated that it would allow Mr. Nadasi
to present an offer of proof with respect to the anticipated testimony. At the hearing on
the admissibility of the proffered opinion testimony, Robert Wachsmuth, Mr. Kephart’s
investigator, testified. Mr. Wachsmuth received training in the use of choke holds. That
training included how victims of a choke hold react if they lose consciousness.

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Mr. Wachsmuth likened the effect of a choke hold to that of a drowning individual. In
both instances, individuals may become hysterical, flail their arms, shake, and quiver.
The reaction is similar to an epileptic fit. John Busick, a security host for the Walt
Disney Corporation, was formerly a member of the Marine Corps. In basic training, Mr.
Busick learned to properly use a choke hold as well as the effects of such a technique.
Mr. Busick had blacked out slightly as the result of being placed in a choke hold.
Mr. Busick stated that all Marines receive this same training. The Marine Corps training
manual was introduced to demonstrate the various choke holds. Mr. Busick did not
testify he trained Marines on the use of choke holds.
Following their testimony, Mr. Nadasi stated the testimony would demonstrate:
“[T]he choke hold was being applied by the victim, not by [Mr. Kephart] or the defense
and that the victim was in such a state that he was going to die or at least both - - [¶] . . .
[¶] [T]he evidence that we’re going to present is that the victim had the choke hold on
[Mr. Kephart] and that, in essence, it became so severe [Mr. Guerrero] obviously thought
that the victim or - - excuse me - - that [Mr. Kephart] was either going to die or was in
serious danger of sustaining great physical harm. [¶] As a consequence to that we want
to establish what effects the choke hold has and why he reacted the way that he did at the
time it was being applied to him.” Mr. Nadasi stated he only became aware of the
potential testimony a week prior to trial. The prosecutor argued that Mr. Busick had not
demonstrated any expertise in the effects of choke holds other than basic training in the
Marine Corps. She argued there was no evidence concerning the instructor, the length of
training, or the nature of the skills learned by Mr. Busick. The prosecutor further argued
that the effects of loss of oxygen to the brain are more akin to a medical opinion. Finally,
the prosecutor indicated that she first learned of the proposed testimony concerning
choke holds at the time the trial court asked for time estimates.

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b. the trial court could properly exclude the proffered testimony
In ruling to exclude the proffered testimony, the trial court stated: “The request is
denied to have those people testify to the subject matters offered for a lot of reasons,
including what [the prosecutor] just said. Common knowledge. [¶] Experts are rendered
to offer opinions on things that are not common knowledge generally. I mean, that’s - -
it’s expert versus lay opinion. [¶] The subject matter of whoever was in the choke hold,
the People are saying it’s the alleged victim. You’re apparently going to say it was one
of the defendants. [¶] You know, the questions could be asked of them of what effects
the choke hold had on them and because of the choke hold why did you do certain things
if anything? [¶] It’s really not a subject for expertise. So that’s one of the reasons why
I’m denying it. [¶] The second reason is is that I don’t even feel it’s relevant to have
these witnesses testify to, you know, if somebody’s knocked out in a choke hold. It’s - -
it’s one witness’s experience and different than the other witness that people react as
being in an epileptic type seizure, thrashing around type thing. The two witnesses
testified differently on that. [¶] But even if they were consistent it doesn’t even matter.
Who cares? I mean, that’s what it really comes down to is who cares? So it’s irrelevant
to this case what is being proferred here. [¶] . . . [¶] 352 analysis here, I would say that
the time it would take to get through all this versus the relevance, which I’m already
saying there is no relevance, I would say under 352 independent of what I’ve said already
that’s another ground for me to keep it out. [¶] And then the third ground is late
discovery. I don’t even need to get to it, but I would say that there’s just no excuse for
that in my opinion assuming it would have come in. [¶] I would have had to have
reached this decision - - I really don’t have to reach this decision because I’m already
saying it’s not coming in, but as an aside it would have been a large hoop to get over for
the defense for me to let it in because it’s not fair to the other side if it did come in. [¶]
Now they have to go find an expert in the next few days. Maybe they could. Maybe they
couldn’t. I haven’t even asked them that. [¶] Maybe they wouldn’t object because they

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have an expert, but they are objecting on the timeliness basis. And, as an aside, I would
say that it will be probable that I would have kept it out on that basis as well. But I don’t
even have to get to that point really.”
Evidence Code section 720, subdivision (a) provides: “A person is qualified to
testify as an expert if he has special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which is testimony relates.
Against the objection of a party, such special knowledge, skill, experience, training, or
education must be shown before the witness may testify as an expert.” In addition, the
Supreme Court has held, “An expert witness’s testimony in the form of an opinion is
limited to a subject ‘that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact . . . .’ (Evid. Code, § 801, subd. (a).)” (People v.
Catlin (2001) 26 Cal.4th 81, 131.) The California Supreme Court has also held, “‘“The
trial court is given considerable latitude in determining the qualifications of an expert and
its ruling will not be disturbed on appeal unless a manifest abuse of discretion is
shown.”’” (People v. Davenport (1995) 11 Cal.4th 1171, 1207, quoting People v.
Cooper (1991) 53 Cal.3d 771, 813; see also People v. Bui (2001) 86 Cal.App.4th 1187,
1196.)
Nothing in the oral offer of proof or the testimony demonstrated any expertise on
the part of either witness with regard to either choke holds or the potential to bite off an
ear while rendered unconscious. Both had merely been trained in the use of choke holds.
Although Mr. Wachsmuth had seen individuals react to choke holds by flailing their arms
and being out of control, he did not testify that he had seen anyone biting off an ear.
Neither had ever received any training by properly trained medical professionals. The
trial court could reasonably conclude that neither Mr. Wachsmuth nor Mr. Busick were
qualified to offer opinion testimony. Moreover, the trial court could properly rule that
the testimony of these two witnesses was irrelevant. In addition, the trial court instructed
the jury with CALJIC No. 4.30, “A person who while unconscious commits what would
otherwise be a criminal act, is not guilty of a crime. . . .” We need not address Mr.

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Kephart’s argument that he was denied effective assistance of counsel based up Mr.
Nadasi’s failure to disclose the nature of the testimony to the prosecutor until just prior to
trial. The trial court specifically noted that it did not base its ruling on that factor.
B. Sufficiency Of The Evidence
Mr. Kephart argues that there was insufficient evidence to support his convictions.
Mr. Kephart reasons Mr. Kreszchuk’s statements to the police and testimony at the
preliminary hearing and trial were inherently incredible. This argument would also
accrue to Mr. Guerrero’s benefit. In reviewing a challenge of the sufficiency of the
evidence, we apply the following standard of review: “[We] consider the evidence in a
light most favorable to the judgment and presume the existence of every fact the trier
could reasonably deduce from the evidence in support of the judgment. The test is
whether substantial evidence supports the decision, not whether the evidence proves guilt
beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted;
People v. Hayes (1990) 52 Cal.3d 577, 631; People v. Johnson (1980) 26 Cal.3d 557,
576.) Our sole function is to determine if any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979)
443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall
(1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes
(1986) 42 Cal.3d 284, 303; Taylor v. Stainer (1994) 31 F.3d 907, 908-909.) The
standard of review is the same in cases where the prosecution relies primarily on
circumstantial evidence. (People v. Rodriguez, supra, 20 Cal.4th at p. 11; People v.
Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208;
People v. Bean (1988) 46 Cal.3d 919, 932.) The California Supreme Court has held,
“Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’” (People v.
Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745,

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755.) Because intent can seldom be proven by direct evidence, it typically is inferred
from the circumstances. (People v. Smith (1998) 64 Cal.App.4th 1458, 1469; People v.
Edwards (1992) 8 Cal.App.4th 1092, 1099; People v. Wilkins (1972) 27 Cal.App.3d 763,
773.) There was substantial evidence to support both Mr. Kephart’s and Mr. Guerrero’s
convictions.
Battery is defined as, “A battery is any willful and unlawful use of force or
violence upon the person of another.” (§ 242; see People v. Benavides (2005) 35 Cal.4th
69, 102-103.) In this instance, both Mr. Kephart and Mr. Guerrero were found guilty of
battery with serious bodily injury. (§ 243, subd. (d).) Mr. Kephart was also convicted of
mayhem for having bitten off Mr. Kreszchuk’s ear. In addition to Mr. Kreszchuk’s
testimony that he suffered blows to his head and face and bites to his arm and ear,
resulting in bleeding and swollen eyes, two other eyewitnesses testified. Mr. Friedman
testified that the man in the black shirt was the one being held down while a third person
punched and kicked at the victim. Mr. Friedman heard one of the assailants say “‘Kick
his head,’ or, ‘Kick his face,’ . . . and, ‘Hold him down.’” He saw the two assailants get
into a car and drive away. Mr. Edgerly testified that he heard someone say, “‘Kick him
in the head.’” Mr. Edgerly saw an individual jump into the white truck. Mr. Edgerly
believed the driver intended to run over the victim when driving away. Mr. Friedman
and Mr. Edgerly each heard the victim yell: “‘Help.’” and “‘Fire.’” Mr. Kreszchuk
testified that he had previously lied to police officers at the time of the incident by failing
to reveal: he had been drinking while driving; he was under the influence of alcohol; and
he and the defendants had purchased cocaine prior to the fight. Mr. Kreszchuk also
admitted that he had lied at the time he testified at the preliminary hearing in this case.
The jurors were instructed to weigh these factors in determining witness credibility in
CALJIC Nos.: 2.13 [prior consistent or inconsistent statements]; 2.20 [believability of
witness]; 2.21.1 [discrepancies in testimony]; 2.21.2 [witness willfully false]; 2.22
[weighing conflicting testimony]; and 2.27 [sufficiency of testimony of one witness].
Again, it is presumed the jurors followed those instructions. (People v. Ledesma, supra,

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39 Cal.4th at p. 725; People v. Avila, supra, 38 Cal.4th at p. 574; People v. Bradford,
supra, 15 Cal.4th at p. 1337.) The testimony of the eyewitnesses corroborated Mr.
Kreszchuk’s own account at trial as to what transpired. As a result, there was substantial
evidence to support the convictions.
Also, Mr. Guerrero argues that the evidence was insufficient to support the
conclusion the victim suffered serious bodily injury. Mr. Kreszchuk’s ear lobe was bitten
off during the fight. This constituted substantial evidence Mr. Kreszchuk suffered
serious bodily injury. (§ 243, subd. (f)(4); People v. Fosselman (1983) 33 Cal.3d 572,
579.)
C. Instructions
1. accomplice instruction
Mr. Kephart argues that Mr. Kreszchuk was an accomplice. Mr. Kephart reasons
Mr. Kreszchuk accompanied defendants to purchase cocaine and then took possession of
the contraband. Mr. Kephart further argues that Mr. Kephart committed perjury at the
preliminary hearing. As a result, Mr. Kephart argues that the trial court was required to
instruct the jury that the testimony of Mr. Kreszchuk should be viewed with distrust.
This argument accrues to Mr. Guerrero’s benefit as well.
Section 1111 provides in pertinent part, “An accomplice is hereby defined as one
who is liable to prosecution for the identical offense charged against the defendant on
trial in the cause in which the testimony of the accomplice is given.” (Italics added; see
also People v. Arias (1996) 13 Cal.4th 92, 142-143; People v. Sully (1991) 53 Cal.3d
1195, 1227; People v. Felton (2004) 122 Cal.App.4th 260, 268.) The Supreme Court has
explained: “‘[W]hen there is sufficient evidence that a witness is an accomplice, the trial
court is required on its own motion to instruct the jury on the principles governing the
law of accomplices,’ including the need for corroboration.” (People v. Tobias (2001) 25

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Cal.4th 327, 331.) As Mr. Kephart concedes, defendants have the burden of proof that
Mr. Kreszchuk was an accomplice. (People v. Frye (1998) 18 Cal.4th 894, 967-969;
People v. Fauber (1992) 2 Cal.4th 792, 833-834; People v. Sully, supra, 53 Cal.3d at p.
1228.) Mr. Kephart has failed to do so here. The very language of section 1111 requires
that the “identical offense” be the one “charged against the defendant on trial in the cause
in which the testimony of the accomplice is given” in order for the foregoing accomplice
principles to apply. (People v. Slaughter (2002) 27 Cal.4th 1187, 1201-1202; People v.
De Paula (1954) 43 Cal.2d 643, 648; People v. Felton, supra, 122 Cal.App.4th at p.
273.) As a result, no instruction was required that Mr. Kreszchuk’s testimony be viewed
with distrust because he was an accomplice.
Moreover, any error in failing to give accomplice instructions was harmless
because there was ample evidence corroborating Mr. Kreszchuk’s testimony. (People v.
Box (2000) 23 Cal.4th 1153, 1209; People v. Arias, supra, 13 Cal.4th at p. 143; People v.
Sully, supra, 53 Cal.3d at p. 1228; People v. Miranda (1987) 44 Cal.3d 57, 100.) As set
forth previously, Mr. Kreszchuk’s testimony was corroborated by the testimony of
Mr. Friedman and Mr. Edgerly. Mr. Kreszchuk testified that he was wearing a black
shirt, which he removed after his assailants left. Mr. Friedman testified the victim was
wearing a black shirt. Further, Mr. Kreszchuk’s keys were located in Mr. Guerrero’s
pocket during the booking process.
2. unconsciousness instructions
Mr. Kephart argues that the trial court improperly instructed the jury with CALJIC
4.31.3 Mr. Kephart argues the instruction’s ambiguity rendered it constitutionally infirm.
3 CALJIC No. 4.31 was given as follows: “If the evidence establishes beyond a
reasonable doubt that at the time of the commission of the alleged crime the defendant
acted as if he was conscious you should find that he was conscious unless from all the

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Mr. Kephart argues the instruction did not designate which party had the burden of
proving lack of consciousness. These contentions have no merit. (People v. Babbitt
(1988) 45 Cal.3d 660, 689-696; see Moss v. Superior Court (1998) 17 Cal.4th 396, 427-
428.) We are bound by those decisions. (People v. Birks (1998) 19 Cal.4th 108, 116, fn.
6; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We reject Mr.
Kephart’s argument that People v. Babbitt, supra, 45 Cal.3d at pages 689-696, was
wrongly decided.
3. simple battery as a lesser included offense
Mr. Guerrero argues that the trial court improperly failed to instruct the jury on
simple battery as a lesser included offense of battery with serious bodily injury. The
California Supreme Court has held that a trial court must instruct on the general
principles of law relevant to the issues raised by the evidence, including instructions on
lesser included offenses. (People v. Ochoa (1998) 19 Cal.4th 353, 422; People v.
Breverman (1998) 19 Cal.4th 142, 154.) In People v. Montoya (2004) 33 Cal.4th 1031,
1034, the California Supreme Court held: “In deciding whether an offense is necessarily
included in another, we apply the elements test, asking whether ‘“‘all the legal
ingredients of the corpus delicti of the lesser offense [are] included in the elements of the
greater offense.’ [Citation.]”’ . . . In other words, ‘if a crime cannot be committed
without also necessarily committing a lesser offense, the latter is a lesser included offense
within the former.’ [Citation.]” (Ibid.; People v. Lopez (1998) 19 Cal.4th 282, 288;
People v. Birks, supra, 19 Cal.4th at p. 118.) However, the California Supreme Court
also held: “[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense, but such instructions are required whenever
evidence you have a reasonable doubt that the defendant was, in fact, conscious at the
time of the alleged crime. [¶] If the evidence raises a reasonable doubt that the defendant
was, in fact, conscious you must find that he was then unconscious.”

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evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is
‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’
that the lesser offense, but not the greater, was committed.” (People v. Breverman,
supra, 19 Cal.4th at p. 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12,
original italics, see also People v. Birks, supra, 19 Cal.4th at pp. 117-118.)
Section 243, subdivision (f) defines serious bodily injury thusly, “‘Serious bodily
injury’ means a serious impairment of physical condition, including, but not limited to,
the following: loss of consciousness; concussion; bone fracture; protracted loss or
impairment of function of any bodily member or organ; a wound requiring extensive
suturing; and serious disfigurement.” (See People v. Fosselman, supra, 33 Cal.4th at p.
579.) For purposes of his instructional error contention, Mr. Guerrero does not dispute
that the ear injury constituted serious bodily injury. However, Mr. Guerrero argues,
“Since [he] was not held liable for the ear injury constituting the mayhem offense, it is
reasonable to believe the jury’s verdict was based on the remaining injuries.”
Mr. Guerrero contends: “[T]he evidence was undisputed that [Mr.] Kreszchuk was
beaten by [Mr.] Kephart and [Mr. Guerrero] joined the fray. However, the evidence also
reflected that [Mr.] Kreszchuk, while hit and kicked about the body and face, did not
sustain any ‘serious bodily injury’ from such acts. [Mr.] Kreszchuk’s testimony
established that he was placed in a chokehold and then pummeled about the head and
face, sustaining swollen eyes as a result. [] [Mr.] Kephart later bit [Mr.] Kreszchuk’s
hand and he was kicked by [Mr. Guerrero]. . . . Hence, these acts, under the state of the
evidence, do not qualify as aggravated battery.” Mr. Guerrero further argues the
evidence was clear that Mr. Kephart bit off Mr. Kreszchuk’s ear. And Mr. Guerrero
notes he was found not guilty of the mayhem charge. Thus, he argues, “[I]t is reasonable
to believe the jury’s verdict was based on the remaining injuries.”
Mr. Guerrero’s logic is flawed. It is undisputed Mr. Kreszchuk’s ear was bitten
off. Although battery is a lesser included offense of battery with serious bodily injury,

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the facts of this case negate the necessity for the trial court to so instruct the jury. This is
particularly true where the undisputed evidence demonstrated the victim suffered serious
bodily injury. Section 954 provides in pertinent part: “An accusatory pleading may
charge two or more different offenses connected together in their commission, or
different statements of the same offense or two or more different offenses of the same
class of crimes or offenses, under separate counts . . . . The prosecution is not required to
elect between the different offenses or counts set forth in the accusatory pleading, but the
defendant may be convicted of any number of the offenses charged . . . . An acquittal of
one or more counts shall not be deemed an acquittal of any other count.” In People v.
Sanchez (2001) 26 Cal.4th 834, 853, fn. 11, the California Supreme Court held: “‘[A]n
inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually
irreconcilable with a conviction on another . . . effect is given to both. (United States v.
Powell (1984) 469 U.S. 57 [citations].’ (People v. Santamaria (1994) 8 Cal.4th 903, 911,
italics added . . . .)” (See also People v. Lara (1996) 43 Cal.App.4th 1560, 1568, fn. 4
[“A verdict of conviction on one count which appears inconsistent with a verdict of
acquittal on another count shall afford no basis for a reversal where the evidence is
sufficient to support the conclusion that the defendant is guilty of the offense of which he
stands convicted, regardless of how similar the facts underlying each count are.
[Citation.]”]) Although Mr. Guerrero was not convicted of mayhem as an aider and
abettor, the loss of Mr. Kreszchuk’s ear was the end result of the aggravated battery.
Mr. Guerrero was one of the assailants during the altercation when Mr. Kreszchuk’s ear
was irretrievably lost. No lesser included battery instruction was required.
4. flight instruction
Mr. Guerrero argues the trial court improperly instructed the jurors over defense
counsel’s objection with CALJIC No. 2.52 as follows: “The flight immediately after the
commission of a crime is not sufficient in itself to establish guilt, but is a fact which, if

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proved, may be considered by you in light of all of the proved facts in deciding whether a
defendant is guilty or not guilty. [¶] The weight to which this circumstance is entitled is
a matter for you to decide.” This argument accrues to the benefit of Mr. Kephart as well.
This contention has no merit.
The California Supreme Court has held, “In general, a flight instruction ‘is proper
where the evidence shows that the defendant departed the crime scene under
circumstances suggesting that his movement was motivated by a consciousness of guilt.’”
(People v. Bradford (1997) 14 Cal.4th 1005, 1055, quoting People v. Ray (1996) 13
Cal.4th 313, 345; see § 1127c; People v. Jones (1991) 53 Cal.3d 1115, 1145; People v.
Mason (1991) 52 Cal.3d 909, 943; People v. Turner (1990) 50 Cal.3d 668, 694-695.)
Mr. Guerrero argues there was no evidentiary support for the instruction. However,
evidence was introduced that defendants left the scene of the incident by jogging or
running to their truck and quickly driving away, almost hitting Mr. Kreszchuk in the
process. Defendants did nothing to aid Mr. Kreszchuk, who was bleeding profusely. The
circumstances of defendants’ departure from the crime scene logically permitted an
inference that their actions were motivated by guilt and delivery of the instruction was
proper. (Cf. People v. Jackson (1996) 13 Cal.4th 1164, 1226; People v. Pensinger
(1991) 52 Cal.3d 1210, 1244; People v. Mendias (1993) 17 Cal.App.4th 195, 202; People
v. Turner, supra, 50 Cal.3d at p. 694; People v. London (1988) 206 Cal.App.3d 896,
903.) Moreover, the instruction left the weight of the evidence of flight to the trier of
fact. Finally, in light of other evidence of defendant’s guilt and other instructions given,
any error in instructing on flight was harmless. It is not reasonably probable a result
more favorable to defendant would have been reached absent such an alleged error.
(People v. Crandell (1988) 46 Cal.3d 833, 870; People v. Silva (1988) 45 Cal.3d 604,
628; People v. Watson, supra, 46 Cal.2d at p. 836.)

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D. Cumulative Error
Mr. Kephart argues, and presumably Mr. Guerrero joins him in the argument, that
the cumulative effect of errors committed by the trial court requires the reversal of their
convictions. We disagree. There has been no showing of cumulative prejudicial error.
(People v. Seaton (2001) 26 Cal.4th 598, 675, 691-692 [few errors identified were minor
and either individually or cumulatively would not alter the outcome of the trial]; People
v. Catlin, supra, 26 Cal.4th at p. 180 [same]; People v. Cudjo, supra, 6 Cal.4th at p. 630
[no cumulative error when the few errors which occurred during the trial were
inconsequential].) Whether considered individually or for their cumulative effect, any of
the errors alleged did not affect the process or accrue to defendants’ detriment. (People
v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo, supra, 6 Cal.4th at p. 637.) The
California Supreme Court has held, “[A] [d]efendant [is] entitled to a fair trial but not a
perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009; People v. Mincey
(1992) 2 Cal.4th 408, 454; People v. Miranda, supra, 44 Cal.3d at p. 123.) In this case,
defendants received more than a fair trial.
E. Sentencing
1. Imposition of upper term
Citing Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856] and
Blakely v. Washington (2004) 542 U.S. 296, 301, Mr. Kephart argues that his Sixth
Amendment right to a fair and impartial jury was violated by the trial court’s imposition
of the upper term as to the mayhem conviction because the term was based on facts not
determined to be true by a jury. Mr. Kephart argues he was entitled to a jury trial on the
issue of the existence of aggravating factors. In People v. Black (July 19, 2007,
S126182) ___ Cal.4th ___, ___, and People v. Sandoval (July 19, 2007, S148917) ___

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Cal.4th ___, ___, the California Supreme Court examined the imposition of an upper
term under the state determinate sentencing law in light of Cunningham v. California,
supra, ___ U.S. ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: “[A]s long as
a single aggravating circumstance that renders a defendant eligible for the upper term
sentence has been established in accordance with the requirements of Apprendi [v. New
Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by
the trial court in selecting the appropriate sentence among the three available options
does not violate the defendant’s right to jury trial.” (People v. Black, supra, ___ Cal.4th
at p. ___, original italics.) Our Supreme Court further held: “It follows that imposition
of the upper term does not infringe upon the defendant’s constitutional right to jury trial
so long as one legally sufficient aggravating circumstance has been found to exist by the
jury, has been admitted by the defendant, or is justified based upon the defendant’s
record of prior convictions.” (People v. Black, supra, ___ Cal.4th. at p. ___.)
In this case, the trial court relied upon the fact that Mr. Kephart was on probation
in two different cases at the time of the incident. During the prosecutor’s argument, the
trial court interjected: “”[H]e’s on probation on two cases. It’s starting to get a little
more serious. Two misdemeanors recent and on probation at the time of this offense
which he’s now in violation of.” In imposing the upper term, the trial court noted: “The
factors in aggravation are that he was on probation on two cases at the time of this
incident. And the nature of the crime is above and beyond, it seems to me, the
seriousness normally associated with mayhem. [¶] I mean, here’s a situation where this
person is truly maimed for life.” The trial court’s comments suggest not only that
defendant had failed on probation, but also that his conviction constituted increased
seriousness. The trial court’s reliance on defendant’s failure on probation constituted one
“legally sufficient aggravating circumstance” that justified the imposition of the upper
term as to count 1. As a result, defendant’s constitutional right to a jury trial was not
violated by the trial court’s imposition of the upper term sentence for his conviction of
assault with a semiautomatic firearm. The “‘statutory maximum’” sentence to which

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defendant was exposed was the upper term. (People v. Black, supra, ___ Cal.4th at p.
___.)
2. Restitution fines
The trial court imposed a $200 section 1202.4, subdivision (b)(1) restitution fine
and stayed the $200 section 1202.45 parole revocation restitution fine as to each
defendant. These two restitution fines are not subject to section 1464, subdivision (a) and
Government Code section 76000, subdivision (a) penalty assessments. (§ 1202.4, subd.
(e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77
Cal.App.4th 730, 734.) However, the Government Code section 70372, subdivision (a)
state court construction penalty states in part, “[T]here shall be levied a state court
construction penalty, in addition to any other state or local penalty including, but not
limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of
the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10)
or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the
courts for criminal offenses . . . .” The state court construction penalty applies to “every
fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . .”
which includes restitution fines. Therefore, a state court construction penalty of $100 is
to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines as
to both Mr. Guerrero and Mr. Kephart. (Needless to note, the additions to the section
1202.45 parole revocation restitution fines are stayed.)

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3. Court Security Fees
Mr. Kephart was subject to the imposition of a $20 court security fee pursuant to
section 1465.8, subdivision (a)(1) for each of the two counts for which he was convicted.
(See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed
only one section 1465.8, subdivision (a)(1) fee. An additional section 1465.8,
subdivision (a)(1) fee shall be imposed as to Mr. Kephart. The trial court is to personally
insure the abstract of judgment is corrected to comport with the modifications we have
ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128
Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgments are affirmed as modified to impose the state court fee as to Mr.
Kephart and the state court construction penalties as to both defendants. The trial court is
to personally insure a corrected abstract of judgment is prepared and forwarded to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
KRIEGLER, J.

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