People v. Roman

1

THE PEOPLE, Plaintiff and Respondent, v. SERGIO LOPEZ ROMAN, Defendant and Appellant.

A164943

California Court of Appeals, First District, First Division

September 11, 2023

NOT TO BE PUBLISHED

(Humboldt County Super. Ct. No. CR2000417)

Humes P.J.

After defendant Sergio Lopez Roman had a physical altercation with his uncle, a jury convicted Roman of one felony count of assault by means of force likely to produce great bodily injury (GBI). The jury also found true the allegations that Roman personally inflicted GBI on his uncle and personally used a deadly or dangerous weapon during the assault. The trial court sentenced Roman to six years in prison.

On appeal, Roman contends that reversal is required because (1) the trial court erred by instructing the jury on flight and (2) his trial counsel provided ineffective assistance of counsel. We reject both claims and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Fight Between Roman and His Uncle

Around 7:00 p.m. on January 10, 2020, Roman's 62-year-old uncle (uncle) left his Eureka home and walked around the corner to the house of his sister, Roman's mother (mother). Uncle visited nightly to help mother, who was in her late 70's and had health issues, by feeding her, cleaning up, and putting her to bed.

At the time, 52-year-old Roman lived with his older brother in a converted garage on mother's property. Uncle and Roman, who testified in his own defense, agreed that they had a good relationship when Roman was growing up. According to uncle, they no longer got along because Roman would not help with mother's care. Roman claimed to have had "no idea" that uncle "had a problem" with him.

Uncle testified that as he was putting mother to bed, he saw Roman enter the living room, and the two made eye contact. Roman "was yelling something like he was mad" and "calling somebody names." Uncle was not sure whether Roman was addressing him, and he ignored Roman while he continued to help mother. About five minutes later, uncle noticed that Roman had left.

Uncle testified that he spent another 15 minutes or so at mother's house, until about 9:00 p.m. He then exited the house onto a concrete patio, which was bordered on one side by the unit where Roman lived. To leave the property, it was then necessary to travel a narrow path around the back of a third building that faced Roman's residence. When uncle came outside, he saw Roman standing on the path, blocking his way. Roman, who was "[j]umping . . . like he was getting pumped up," told uncle, "Come on. Let's fight." Uncle responded, "Are you serious?" Roman then approached him and "started throwing punches" at his head.

Uncle testified that the fight began on the path but moved to the patio. After Roman threw the first punches, uncle blocked them, "sw[u]ng back," and kicked his nephew. Roman fell down, and uncle "thr[e]w a couple punches" but then "let him get up." Once Roman was standing again, uncle noticed that Roman "was swinging kind of different" with a "shorter motion." Uncle then felt his leg become warm, looked down, and saw that his "shoe was all full of blood." At that point, uncle believed that Roman had "stabbed" him, although it was dark and uncle never saw the weapon. Uncle backed away and went home. He testified that walking was "painful" and he was "bleeding a lot."

Roman described the fight differently. He testified that he went to mother's house that night to drop off her mail. Once inside, he yelled to mother that he had her mail and put it on the counter. When he looked up, uncle was standing there and gave him "an angry, disgusting look . . . that was not very friendly." Roman testified that he "scoffed" in response "like, yeah, whatever." Uncle then got close to Roman with "his chest in [Roman's] face," which Roman perceived as an "aggressive gesture." According to Roman, after he told uncle it seemed like he wanted to fight, they went outside. Both men took off their glasses and "face[d] off," and uncle initiated physical contact by grabbing Roman's neck.

Roman claimed that after the fight started, he and uncle both fell to the ground and were "rolling" around on the patio. Roman categorically denied having a knife. Instead, he claimed that uncle was injured because he "land[ed] . . . real good" on some rebar that was sticking out of the ground. Roman denied that he ever had physical control of uncle during the fight or intentionally pushed uncle into the rebar. Roman claimed that he also hurt himself on the rebar, testifying that he "got full of holes in [his] back," had "scrapes and cuts and bruises all over [his] arm and [his] side," and "couldn't move for three days [he] was so hurt."

Uncle testified that he "never went to the ground," and he denied sustaining any wounds by falling on rebar. Indeed, he was not aware of any exposed rebar on the patio. But photographs admitted into evidence, which we have reviewed, show four pieces of rebar in a line along one edge of the patio, about four inches from the wall of one of the property's structures. None of the pieces, which are rusty and circular, protrude more than an inch or so from the concrete. Three pieces are about 18 inches away from each other, and the fourth is about three feet farther away, past where the wall ends. A prosecution investigator who took some of the photographs testified that he "did not observe anything [at the scene] that would appear to be able to make . . . a puncture wound" like those uncle sustained.

B. The Fight's Aftermath

Uncle's wife testified that after uncle got home, "[t]here was blood everywhere," including on the sidewalk and his shirt. She immediately drove him to the hospital. On the way, uncle "was losing a lot of blood," and by the time they reached the hospital he could "[b]arely" walk.

A three-page excerpt of uncle's hospital records admitted into evidence referred throughout to uncle's "stab wounds," including the statement that uncle had "1.5 cm stab wounds to the left elbow, left upper arm, left lateral thigh, left anterior thigh." Photographs of uncle taken at the hospital show rectangular wounds with curved edges, some deeper than others. Some of uncle's clothing was removed from his body, and photographs of the material show at least one curved cut through it. Uncle was released the following morning and recovered fully within a few weeks.

Around 10:15 p.m. that night, a Humboldt County sheriff's deputy was dispatched to the hospital where uncle being treated. The deputy described uncle's wounds as "a series of small[,] approximately one-inch cuts on the left side of his body between his left arm and his left leg.... They were thin and it appeared that they were from a thin[-]bladed object, very similar [to] a knife." The deputy also referred to the cuts as "puncture" wounds.

Later that night, the deputy went to the scene to investigate. Roman's brother was there and reported that he heard Roman and uncle fighting but did not see the altercation.^[1] The brother stated that "he was missing a steak knife from his [knife] block in his kitchen" and allowed the deputy inside to see. A photograph of the knife block taken that night shows three out of six steak knives missing. The deputy also saw blood on the patio, although it was raining and the blood was starting to disappear. Photographs taken that night show red splotches at various places on the ground in that area.

Meanwhile, Roman was not at the scene, and a warrant was issued for his arrest. The sheriff's deputy testified that "[o]nce [he] returned to the office," he called a phone number he was given for Roman, but no one answered. The record does not indicate whether the deputy left a message or tried to call Roman again.

Roman testified that before law enforcement arrived, he went to a friend's house. The friend was not home, and Roman used "gorilla tape and glue" on his injuries. Roman did not seek medical treatment, document his injuries, or show them to anyone else. He also threw away the clothes he was wearing that night because they were "all wet and tattered." Roman claimed that he "didn't have [his] cell phone on [him] at the time." Though he got it back in the "[n]ext day or two," he "[d]idn't know" that law enforcement was trying to reach him.

C. Procedural History

Roman was charged with one felony count of assault by means likely to produce GBI. It was also alleged that he personally used a deadly and dangerous weapon, a knife, and that he inflicted GBI on uncle. Finally, a prior strike was alleged based on a 1998 conviction for grossly negligent discharge of a firearm.^[2]

The jury found Roman guilty of the assault charge and accompanying allegations. After finding the prior-strike allegation true, the trial court granted Roman's Romero motion to dismiss it.^[3] The court then sentenced him to six years in prison, composed of the midterm of three years for the assault and a consecutive term of three years for the infliction of GBI.^[4]

II. DISCUSSION

A. The Trial Court Properly Instructed the Jury on Flight.

Roman claims that the trial court erred by giving CALCRIM No. 372, the form jury instruction on flight, because there was insufficient evidence that he fled from the scene. We conclude there was substantial evidence of flight to support the instruction, and even if there had not been, the error in giving the instruction was harmless.

1. Additional facts

The prosecution asked that the jury be instructed under CALCRIM No. 372 based on the evidence that Roman left the scene after the fight. Roman's trial counsel objected, stating that "[f]light is to avoid prosecution, avoid arrest," and the instruction does not apply when there "was a fight and each party went their own way." After...