P. v. Jaramillo

Filed 9/29/17 P. v. Jaramillo CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN JARAMILLO,
Defendant and Appellant.
B277223
(Los Angeles County
Super. Ct. No. TA140038)
APPEAL from the judgment of the Superior Court of Los
Angeles County. Michael J. Shultz, Judge. Affirmed.
Lori Nakaoka, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven E. Mercer and Esther Kim, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *

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A jury convicted defendant and appellant John Jaramillo of
one count each of assault with a firearm, possession of
ammunition, and possession of a firearm by a felon. Defendant
contends the trial court committed evidentiary errors and abused
its discretion in denying his motion brought pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with assault with a
semiautomatic firearm (Pen. Code, § 245, subd. (b); count 1),
possession of ammunition (§ 30305, subd. (a)(1); count 2), and
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3).
It was further alleged, as to count 1, that defendant personally
used a semiautomatic handgun in the commission of the offense.
It was also alleged defendant had suffered one prior serious or
violent felony within the meaning of the Three Strikes law
(§§ 667, subds. (b)-(j), 1170.12), and had suffered four prior prison
terms (§ 667.5, subd. (b)).
The charges arose from an incident that occurred on the
night of May 5, 2016. Testimony at trial established the
following material facts. Danny Jones went to defendant’s home
around 10:00 p.m. to visit with defendant’s brother, Robert.
When he arrived, Robert was not there, so Mr. Jones started to
show defendant and Robert’s son, Jessie, his new remote control
helicopter. Defendant became angry and told Mr. Jones that he
still owed him money for the car speakers he had sold him.
Mr. Jones said he did not owe him any money because he had
brought the speakers back and given them to Robert. Defendant
continued to insist Mr. Jones owed him the money and that he
had made him look stupid.

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Defendant told Mr. Jones that before he showed up at the
house, he had been planning to go to Mr. Jones’s motel room and
rob him to get back his money. Defendant told Mr. Jones he
should not be hanging around and better leave. Mr. Jones saw
that defendant had a semiautomatic handgun. Defendant
displayed it, pulled out the clip filled with bullets, showed the clip
to Mr. Jones, then snapped the clip back into the gun. Defendant
held the gun with his finger on the trigger. Mr. Jones turned to
leave. He did not believe defendant would shoot him over some
inexpensive speakers. As he started to walk away, he heard the
gun go off right next to his ear and saw the muzzle flash.
Mr. Jones said it felt like defendant hit him in the back of his
head with his arm and the gun went off.
Mr. Jones ran to his truck and drove away. When he got
back to his motel, he called defendant’s brother Robert. Robert
told him to call the police and report what happened, so he did.
On cross-examination, Mr. Jones explained that he called Robert
before calling the police because Robert and defendant are in a
gang, and he was fearful about the situation he would be in by
calling the police. Mr. Jones also conceded on cross-examination
that he had used methamphetamine several hours before the
incident.
Mr. Jones testified at trial in jail clothes, having been
arrested on a bench warrant after failing to appear at the original
trial date. Before Mr. Jones took the stand to testify, defense
counsel requested that if Mr. Jones was allowed to testify that he
had been threatened about coming to court, that he not be
allowed to say the two individuals who made the threats were
gang members. The court denied the request. Defense counsel
also asserted her belief there was a hold on Mr. Jones from San

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Bernardino Superior Court and she wanted to inquire about any
pending charges against Mr. Jones. After Mr. Jones denied
knowing what the hold could be about, the court denied any
further questioning in that regard. We reserve a more detailed
discussion of these evidentiary rulings to the discussion section
below.
The jury found defendant guilty as charged. The court
denied defendant’s Romero motion and sentenced defendant as a
second-strike offender to an aggregate state prison term of
22 years four months.
This appeal followed.
DISCUSSION
1. The Evidentiary Rulings Pertaining to the Victim’s
Testimony
Defendant contends the trial court improperly admitted
testimony from Mr. Jones about threats made to him by gang
members, and also improperly excluded impeachment evidence.
“A trial court’s exercise of discretion in admitting or excluding
evidence is reviewable for abuse [citation] and will not be
disturbed 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 [citation].”
(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) We discuss each
ruling in turn.
a. The gang evidence
Defense counsel argued that if Mr. Jones testified about
being threatened not to come to court, he should not be allowed
to say that the two men who threatened him were gang
members. The only objection stated on the record was that such
evidence was not relevant because there was no gang allegation

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and Mr. Jones had said he simply forgot about the trial date and
that was the reason he failed to appear. However, Mr. Jones
also said that he had been threatened by two gang members
from the neighborhood. The court overruled defendant’s
relevance objection, finding the fact Mr. Jones believed the men
to be gang members was relevant to his fear, credibility and
state of mind and he could be questioned about any and all
possible reasons for his failure to appear that had resulted in his
arrest.
Defendant argues to this court that the evidence should not
have been allowed under Evidence Code section 352, and
because the admission of such evidence violated his
constitutional right to a fair trial. Defendant’s relevance
objection did not preserve these grounds for appeal. (See, e.g.,
People v. Valdez (2012) 55 Cal.4th 82, 138 [objection that
testimony was irrelevant and lacked foundation insufficient to
preserve appellate argument that evidence was inadmissible
under section 352]; People v. Partida (2005) 37 Cal.4th 428, 438-
439 [constitutional argument not embraced by trial court
objection is forfeited on appeal].)
In any event, defendant’s argument is without merit. As
relevant here, Evidence Code section 780 provides that the jury
“may consider in determining the credibility of a witness any
matter that has any tendency in reason to prove or disprove the
truthfulness of his testimony at the hearing, including . . . [¶]
. . . [¶] (f) The existence or nonexistence of a bias, interest, or
other motive. [¶] . . . [¶] [And] (j) His attitude toward the action
in which he testifies or toward the giving of testimony.”
“ ‘[E]vidence that a witness is afraid to testify or fears retaliation
for testifying is relevant to the credibility of that witness and is

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therefore admissible. [Citations.] An explanation of the basis for
the witness’s fear is likewise relevant to [his] credibility and is
well within the discretion of the trial court. [Citations.]’
[Citations.] Moreover, evidence of a ‘third party’ threat may bear
on the credibility of the witness, whether or not the threat is
directly linked to the defendant.” (People v. Mendoza (2011)
52 Cal.4th 1056, 1084 (Mendoza).)
Mr. Jones testified he forgot about the original trial date
and therefore failed to appear. He also said he was not feeling
well that day and he had been told not to appear by two men,
who he knew to be gang members. He said they told him “it
would be in [his] best interest not to show.” The court instructed
the jury with a modified version of CALCRIM No. 303 as follows:
“Evidence that a third party communicated with Mr. Jones and
attempted to influence his testimony have [sic] been admitted to
assist you in assessing Mr. Jones’ credibility, his state of mind,
his bias or prejudice and/or his actions and attitude toward these
proceedings. [¶] This alleged communication is in no way
attributed to the defendant and you are not to consider this
evidence in any way against the defendant. Again, evidence that
third parties may have tried to influence Mr. Jones’ testimony is
admitted solely to evaluate Mr. Jones’ credibility as a witness.”
Admission of the gang evidence was relevant to Mr. Jones’s
credibility and was well within the trial court’s broad discretion
in controlling the examination of witnesses. Any possible
prejudice was mitigated by the court’s instruction to the jury
limiting the use of such evidence. (Mendoza, supra, 52 Cal.4th at
p. 1088 [“any potential for prejudice” from the third party threat
evidence “was eliminated by the trial court’s express instructions

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that the jury was to consider such evidence for the sole purpose of
determining the credibility of these witnesses”].)
Because there was no evidentiary error, even if we were to
consider a section 352 or due process objection, we need not
address defendant’s conclusory contention that his trial counsel
provided ineffective assistance in failing to state all the grounds
for exclusion of the evidence.
b. The impeachment evidence
Defendant contends the trial court improperly excluded
impeachment evidence related to alleged pending charges against
Mr. Jones in San Bernardino County.
Defendant is correct that, in appropriate circumstances, a
“prosecution witness can be impeached by the mere fact of
pending charges.” (People v. Martinez (2002) 103 Cal.App.4th
1071, 1080.) Nevertheless, the trial court retains broad
discretion in controlling the examination of witnesses, including
the scope of cross-examination of prosecution witnesses.
“Although the right of confrontation includes the right to cross-
examine adverse witnesses on matters reflecting on their
credibility, ‘trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination.’ ” (People v. Quartermain (1997)
16 Cal.4th 600, 623 (Quartermain), quoting Delaware v. Van
Arsdall (1986) 475 U.S. 673, 679; accord, People v. Brown (2003)
31 Cal.4th 518, 545 (Brown) [cross-examination by the defense is
“not a matter of ‘absolute right’ ”; the trial court retains broad
authority to impose “ ‘reasonable limits on defense counsel’s
inquiry based on concerns about harassment, confusion of the
issues, or relevance’ ”].)

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Here, the trial court concluded that defense counsel had not
shown any basis for a good faith belief that any possible charges
pending against Mr. Jones in San Bernardino involved a crime of
moral turpitude. Mr. Jones was asked if he knew why he had a
hold in San Bernardino and he said he did not know. He also
denied being a gang member. Defense counsel’s sole basis for
claiming the right to inquire about any possible charges was
based on defendant having told defense counsel that the charges
concerned possession for sale. The court indicated it had
reviewed Mr. Jones’s rap sheet and found not one crime of moral
turpitude except for a 36-year-old conviction for petty theft.
Defendant has not shown any abuse of discretion by the
trial court in precluding this line of questioning, nor has
defendant shown any possibility that if he had been allowed to
ask such questions of Mr. Jones in front of the jury, the jury
would have been provided “ ‘ “a significantly different
impression” ’ ” of Mr. Jones’s credibility. (Brown, supra,
31 Cal.4th at pp. 545-546; see also Quartermain, supra,
16 Cal.4th at pp. 623-624.)
2. The Denial of the Romero Motion
Defendant contends the trial court abused its discretion in
denying his Romero motion to strike his one qualifying strike
from 2002. We disagree.
We review a court’s ruling on a Romero motion under the
deferential abuse of discretion standard. (People v. Williams
(1998) 17 Cal.4th 148, 162 (Williams); accord, People v. Carmony
(2004) 33 Cal.4th 367, 375-376 (Carmony) [holding abuse of
discretion standard also applies to review of a trial court’s
decision declining to strike a prior strike].) A trial court is
“presumed to have acted to achieve legitimate sentencing

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objectives” and the decision to impose a particular sentence will
not be set aside unless an affirmative showing is made that the
sentence is irrational or arbitrary. (Carmony, at pp. 376-377.)
“[A] trial court does not abuse its discretion unless its decision is
so irrational or arbitrary that no reasonable person could agree
with it.” (Id. at p. 377.)
In exercising its discretion whether to strike a prior strike
allegation, the court considers various factors, including the
nature and circumstances of the defendant’s present felonies and
prior convictions, the defendant’s background, character, and
prospects, and whether the defendant may properly be deemed
outside the spirit of the Three Strikes law. (Williams, supra,
17 Cal.4th at p. 161.)
Defendant argued that his one prior qualifying strike from
2002 for a violation of Penal Code section 247, subdivision (b)
(malicious discharge of firearm at motor vehicle or dwelling
house) should be stricken because he had not suffered any other
violent or serious felonies since that conviction, he was older (in
his early 60’s) and less likely to commit serious offenses, and the
victim’s testimony indicated that the firing of the gun was
accidental.
In denying defendant’s Romero motion, the trial court
explained that after the 2002 strike conviction, defendant
continued to commit crimes and suffered numerous convictions,
including both felony and misdemeanor convictions for possession
of a firearm by a felon. The court found that defendant “fits well
within the goals and concept of [the] Third Strike law.” The
probation report demonstrates that defendant had an adult
criminal history beginning in 1983 and continuing, with
regularity, through 2016, including five convictions just in the

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period of time after defendant’s release from prison on his
qualifying strike prior.
The Three Strikes law creates a sentencing norm and
“carefully circumscribes the trial court’s power to depart from
this norm.” (Carmony, supra, 33 Cal.4th at p. 378.) “[T]he law
creates a strong presumption that any sentence that conforms to
these sentencing norms is both rational and proper.” (Ibid.)
Defendant has failed to affirmatively show the trial court abused
its discretion in denying his motion and sentencing him as a
second-strike offender.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.

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