The People v. Reyes

1

THE PEOPLE, Plaintiff and Respondent, v. JESSICA CHENNEL REYES, Defendant and Appellant.

F083247

California Court of Appeals, Fifth District

April 14, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County No 18CMS5330, Michael J. Reinhart, Judge.

Richard M. Oberto for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

Defendant Jessica Chennel Reyes, who had no criminal record of significance at the time,^[1] was arrested in October 2018 following an unusual sequence of events that began with a random encounter between defendant and her cousin and a group of four strangers early one morning. As defendant's cousin and one of the men in the other group fought in the street defendant drove away from the scene in the other group's car. A 17-year-old girl with the other group was in the passenger seat of the car, held there by defendant's grip on her hair. Defendant drove first to her own house and then, with her mother driving and two other relatives in the car, traveled with the victim to her cousin's house. The events ended there, after the victim's group tracked a cell phone signal to the residence.

Defendant was charged with and convicted by jury of kidnapping by force or fear (Pen. Code, § 207, subd. (a); count 1),^[2] child abuse likely to produce great bodily harm or death (§ 273a, subd. (a); count 2), and assault with force likely to produce great bodily injury (GBI) (§ 245, subd. (a)(4); count 3).^[3] The trial court sentenced defendant to the lower term of three years in prison for kidnapping and concurrent lower terms of two years each for child abuse and for assault.

Defendant timely appealed. The trial court instructed the jury with CALCRIM No. 225 (Circumstantial Evidence: Intent or Mental State), and defendant claims the court erred when it also instructed the jury, sua sponte, with a modified version of CALCRIM No. 225 applicable to her defenses of legal necessity and self-defense or the defense of others. Second, she claims that the court misstated an element when it instructed the jury on count 3 with CALCRIM No. 875 (Assault with Force Likely to Produce GBI). If we find either instructional error claim forfeited for failure to object in the trial court, defendant claims she received ineffective assistance of counsel. Finally, defendant claims that under section 654, the court erred in failing to stay her sentence for either child abuse or assault.

As anticipated by defendant, the People argue that her instructional error claims are forfeited for failure to object. Alternatively, they contend that the trial court's instruction with a modified version of CALCRIM No. 225 applicable to defenses was neither erroneous nor prejudicial, and that the court's misstatement of law in instructing with CALCRIM No. 875 was harmless. They also disagree that section 654 applies in this case.

As discussed herein, defendant's characterization of the modified version of CALCRIM No. 225 as weakening the prosecutor's burden of proof, creating a mandatory presumption of guilt, or otherwise confusing the jury with respect to the prosecutor's burden of proof or defendant's guilt is directly contradicted by the record. However, assuming it was error to give the modified version of CALCRIM No. 225 in this case, the error is harmless because "it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error . _." (People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).) Further, we find that the trial court's misstatement of an element of assault in count 3 was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

Finally, as to the application of section 654 in this case, it is undisputed that defendant committed the crimes of kidnapping by force or fear, child abuse, and assault during a single course of conduct. Rather than elect specific acts to support specific charges, the prosecutor relied more broadly on defendant's different actions and victim's different injuries throughout the course of conduct to support the three charges.^[4] We find substantial evidence in the record to support a finding that defendant had the opportunity to reflect between the offenses committed during the drive to her house and the offenses committed during the drive to her cousin's house. (People v. Fuentes (2022) 78 Cal.App.5th 670, 680, quoting People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 (Beamon) ["[A] course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment."].) However, there is not substantial evidence that defendant possessed independent criminal objectives or that the course of conduct was further divisible such that defendant may be punished for all three offenses. Therefore, the trial court erred in failing to stay one of the three sentences under section 654.

Accordingly, this matter shall be remanded to the trial court with instructions to stay the sentence on one of the three counts under section 654. The judgment is otherwise affirmed.

FACTUAL SUMMARY

I. Prosecution Case

A. Street Fight and Taking of Car

1. C.R.'s, Anthony's, and Dylan's Testimony

In the early morning hours of October 21, 2018,^[5] 17-year-old C.R.; her then-boyfriend 18-year-old Anthony; 18-year-old Bryan; and 16-year-old Dylan, were on their way to Freedom Park in Hanford.^[6] C.R. was driving a Toyota Corolla that belonged to Bryan's sister and she, Anthony, and Bryan had just picked Dylan up at his house. As they drove on Leland near 10th with the car windows down, they passed defendant and her cousin, Caleb, whom they did not know, walking down the street on the sidewalk.^[7] When they drove by, Caleb flipped their car off and yelled at them. C.R., Anthony, and Dylan denied they had yet done or said anything, but C.R. made a U-turn and stopped the car across the street from defendant and Caleb.

Bryan and Caleb argued with one another. Caleb, who seemed drunk to Dylan, wanted to fight, and he called Bryan "a pussy" and "a bitch." Bryan got out of the car, and he and Caleb, who were around the same size, began physically fighting in the street. C.R., Anthony, and Dylan also got out of the car and stood at the rear by the trunk watching. C.R. testified that the car doors were left open, the engine was running, and they left cell phones in the car.

C.R. and Dylan testified that Caleb was threatening to kill Bryan, and Dylan stated that defendant was telling Caleb to "beat [Bryan's] ass." As they were fighting in the street, Caleb placed Bryan in what was described as both a headlock and a chokehold. Although defendant continued to encourage the fight, when Caleb placed Bryan in a headlock/chokehold, Anthony, Dylan, and defendant went to intervene to ensure the two men could "fight more fairly." Dylan testified that Bryan "was losing air," and when he and Anthony tried to pull Bryan and Caleb apart, defendant pushed them away and expressed concern they were going to jump Caleb. Dylan and Anthony denied they were trying to jump Caleb or join the fight, and Dylan said the two never got closer than five or six feet from the fight because Bryan and Caleb then separated before continuing to fight. Anthony described pulling on Caleb's arm, however, before Bryan extricated himself and continued the fight with Caleb.

C.R. testified that she had remained by the rear of the car during the fight, and that defendant was standing between herself and Dylan, approximately six to 10 feet away. She and defendant had not exchanged any words, she was trying to record the fight with her cell phone, and Dylan was standing nearby.

C.R. also testified that as she tried to record the fight, a neighbor from a nearby apartment complex came out and asked what was going on. Defendant said, "Yeah, they're fighting," and then ran into the driver's seat of the car. C.R. said, "[B]itch, hold up," and went into the front passenger seat to turn off the car, which had an automatic start button.^[8] They both swung at each other, making contact, and defendant grabbed C.R. by the hair with her right hand. Defendant maintained her grip on C.R.'s hair while using her left hand to try to place the car into drive. C.R. tried to keep the car in park, and the two went back and forth with the gear shift between drive and park several times. Defendant then succeeded in driving forward, which caused the car doors to shut. Dylan was holding onto the driver's side trying to open the door, and he told defendant to get out and asked why she was in the car. As the car started moving, C.R. told Dylan to let go and he did.

Dylan saw Caleb walking away and he, Anthony, and Bryan chased after the car. Once defendant drove around the corner, Dylan called his mother, and she picked them up. They stopped by his house so he could pick up a cell phone and track Bryan's phone, which was in the car with defendant and C.R. At some point, Anthony called his mother, Antonia, and she picked them up.

2. Caleb's Testimony

Caleb M. testified that at the time, he was 30 years old and living in Los Angeles. He was in Hanford to visit family, and he and his cousin, Micah, had spent the evening at Tachi Palace before returning to defendant's house. He had been drinking and felt intoxicated, but denied he was belligerent or was asked to leave defendant's house. However, he decided to walk to the nearby house of another cousin he was staying with, Madalynn, and defendant went...