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Mae G. Alberto (SBN 228067) Attorney at Law 5777 W. Century Boulevard, Suite 750 Los Angeles, California 90045 (310) 642-8800 (310) 642-9903 (FAX) Attorney for Defendant-Appellant Aloni Monique Bonilla

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COUNTY OF LOS ANGELES APPELLATE DIVISION

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PEOPLE OF THE STATE OF CALIFORNIA,

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Case No: BR050957 (Trial Court Case No. 2JB04228)

Plaintiff-Respondent, APPELLANT’S OPENING BRIEF

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v.

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ALONI MONIQUE BONILLA, 16

Defendant-Appellant.

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TO THE HONORABLE JUDGES OF THIS COURT:

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STATEMENT OF THE CASE 21

On May 23, 2012, the District Attorney’s Office filed a misdemeanor complaint against

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Aloni Monique Bonilla (hereafter “Appellant” or “Bonilla”) for acts committed on or about

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March 21, 2012. The four-count complaint alleged violations of Vehicle Code 23152(a), to wit,

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driving under the influence of alcohol or drugs (Count 1); Penal Code 1 section 148(a)(1), to wit,

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resisting, obstructing, or delaying a peace officer (Count 2); section 594(a), to wit, vandalism 27 28 1

Unless otherwise indicated, all statutory references are to the Penal Code.

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 1


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under $400 damage (Count 3); and Vehicle Code section 12951(a), to wit, failure to possess a driver’s license (Count 4). (Clerk’s Transcript, “CT,” 24-26.) On June 27, 2012, Bonilla pled

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not guilty to the charges. (CT 27-28.) 4 5

On March 1, 2013, jury trial commenced with 402 hearings and voir dire. (CT 69-70.)

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On March 5, 2013, the parties gave their opening statements, and the prosecution’s first

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witness, Paul Enriquez, was administered the oath and began his testimony. (CT 73-74.)

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On March 6, 2013, the People moved to exclude the showing of a hospital video to the 9 10

jury. (CT 76-77.) Defense counsel held the DVD of the video during his opening statement.

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(Reporter’s Transcript, “RT,” 91-92, 112.) The court reserved its ruling on the video. (CT 76-

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77.)

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In the morning of March 7, 2013, the court held a hearing on the People’s motion to

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exclude the surveillance video from the hospital. Officer Jose Ramirez testified. The court 15 16

reserved its ruling to after the lunch recess. At 1:30 p.m., the court ruled that the video was

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authenticated by Officer Ramirez. The court further granted the People’s motion to exclude the

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video. Since defense counsel mentioned the video in his opening statement, defense counsel

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made a motion for a mistrial, which the court denied. (CT 78-79.)

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On March 12, 2013, defense counsel moved for the court to reconsider its ruling on the 21 22

hospital video. The court took the matter under submission. After the People rested, and out of

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the presence of the jury, the court denied defense’s motion to allow the jury to see the hospital

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video. (CT 84-85.)

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On March 14, 2013, the jury returned a verdict of guilty on Counts 1 through 4. (CT 26 27

149-151.)

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On March 22, 2013, Bonilla filed a motion for a new trial. (CT 154-168.) On March 29, 2013, the court denied Bonilla’s new trial motion. (CT 180.)

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On March 29, 2013, the court imposed judgment, among others, as follows: Count 1 - (1) 4 5

36 months summary probation, (2) 96 hours in county jail with less credit for 96 hours, (3)

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complete a 3-month first-offender alcohol program, and (4) pay a total of $1,412.00 in fees and

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fines (or in lieu of the court fine, complete 8 days of community labor or Cal Trans and pay

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mandatory fee in the amount of $398.00). (CT 182-184.) 9 10

As to Count 2, the court imposed the following: (1) 36 months summary probation, (2) 25

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days in county jail with less credit for 25 days, (3) enroll in and successfully complete at least 6

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months of anger management counseling program and a compulsive behavior counseling

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program, (4) be evaluated by a therapist regarding any other treatment needed, (5) pay fine of

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$71.00, and (6) pay restitution to California Highway Patrol in the stipulated amount of $323.20. 15 16 17 18 19

(CT 185.) As to Count 3, the court imposed the following: (1) 36 months summary probation, (2) serve 25 days in county jail and less credit for 25 days, and (3) pay fine of $71.00. (CT 186.) As to Count 4, the court denied probation.

The court imposed the fine to run

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concurrently with the fine imposed as to Count 2, however, Bonilla must pay mandatory fee of 21 22 23

$75.00. (CT 187.) On April 29, 2013, Bonilla filed a notice of appeal. (CT 188-189.)

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STATEMENT OF APPEALABILITY 26 27 28

Pursuant to Penal Code section 1466(b)(1), Bonilla appeals from a final judgment of conviction and sentence that the court entered against her on April 29, 2013.

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STATEMENT OF FACTS Prosecution’s Case

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On March 21, 2012, Bonilla was arrested after she was observed driving through the 4 5

closed westbound 10 freeway in the city of Baldwin Park. It was approximately 1:50 a.m., 2

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when Officer Paul Enriquez of the California Highway Patrol observed Bonilla drive past him

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and his partner. Officer Enriquez and his partner were parked at the end of the Frazier Street

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onramp, facing the direction of oncoming traffic. (RT 96, 103, 109.) Upon seeing Bonilla’s 9 10 11

Honda pass them, Officer Enriquez and his partner followed Bonilla as she transitioned to the 605 freeway, and exited at Ramona Boulevard. (RT 118-119, 121.)

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After exiting the freeway, Bonilla entered a Mobil gas station, and parked directly across

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from the cashier area. (RT 121.) Officer Enriquez subsequently made contact with Bonilla who

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was the sole occupant of the car. (RT 123-124.) According to Officer Enriquez, Bonilla initially 15 16

did not acknowledge his presence by her window, and that he had to knock on the glass and

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motion for her to roll down the window. (RT 126.) When Bonilla finally rolled down the

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window halfway, Officer Enriquez detected the odor of alcohol emitting from the interior of the

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vehicle. (RT 126.) Officer Enriquez asked Bonilla for her license, registration and insurance,

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and informed her that the reason for the stop was that she drove through a full freeway closure. 21 22

(RT 127.)

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Bonilla “fumbled” around inside the vehicle, looking around her glove box and interior of

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the car for the items that Officer Enriquez requested. After several minutes, she located an

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insurance card. Bonilla then asked Enriquez if she could check the trunk of the car for her 26 27

driver’s license to which Officer Enriquez responded “no problem.” (RT 129-130.)

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In cross-examination, Officer Enriquez testified that the vehicle passed him at approximately 1:16 a.m. (RT 155.)

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As Bonilla exited the vehicle, Officer Enriquez observed that she was unsteady on her feet. (RT 130.) Bonilla opened the trunk and began to look through paperwork and different

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items in the vehicle.

(RT 131.)

Officer Enriquez stood to Bonilla’s left and illuminated

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Bonilla’s trunk with his flashlight. (RT 131.) Bonilla was not able to locate her driver’s license

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or registration in the back of the vehicle. (RT 132.)

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Since Officer Enriquez smelled the odor of alcohol, he signaled to his partner that they

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may have an impaired driver and to call for an additional unit. Officer Enriquez was on an 9 10 11

overtime unit, and therefore, they needed a “regular beat unit” to handle the investigation. 3 (RT 132.)

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Officers Ramirez 4 and Bernardino responded to the scene. (RT 141.) Officer Enriquez

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advised them the reason for the stop, explained everything that had happened up to that point,

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and turned the investigation to Officer Ramirez. (RT 141.) 15

Officer Ramirez made contact with Bonilla, and smelled alcohol emitting from her

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person. (RT 258.) He also noticed that she was a little unsteady on her feet, and her speech was

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a little slow. (RT 258.) After Officer Ramirez made those observations, he asked Bonilla the

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pre-FST questions. 5 (RT 259.) Bonilla responded that she was coming from home, was going to

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her friend’s house, and had nothing to drink. (RT 260-261.) Bonilla also did not have any 21 22

physical impairment, and was not under the care of a doctor. (RT 264.)

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Officer Enriquez further testified that while they waited for the additional unit, Bonilla had walked to the passenger side of her vehicle, opened the door and retrieved a cell phone. As Bonilla fumbled with her phone, he told her to stop and attempted to take the phone from her. (RT 132-133.) Officer Enriquez was able to obtain the phone from Bonilla and placed it back in the car. Bonilla looked visibly upset. (RT 135-137.) 4 Officer Jose Ramirez. 5 According to Officer Ramirez, the pre-FST questions are a battery of 22 questions that they ask to see how the subject answers. It assists them in determining where the subject was coming from, where they were going to, if they had anything to drink, things of that nature. (RT 260.)

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Officer Ramirez, then, proceeded with the field sobriety tests, and administered four tests on Bonilla: HGN (horizontal gaze nystagmus), Romberg, one leg stand and walk and turn. (RT

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266-267.) After the field sobriety tests, Officer Ramirez had Bonilla do the Preliminary Alcohol 4 5

Screening (PAS) test. (RT 285.) He told Bonilla she had the right to refuse the PAS test, but she

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agreed to take it. (RT 291.)

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Officer Ramirez had Bonilla blow into the PAS device, but noticed that she was not

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blowing. (RT 295.) He gave her another opportunity to blow into the device, but she blew into 9 10

the machine very light. (RT 295, 298.) Officer Ramirez, then, did the manual trap to capture a

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portion of Bonilla’s breath. He received a first reading of .139 at 1:46 a.m., and a second reading

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of .126 at 1:48 a.m. (RT 299-301.) Bonilla was subsequently arrested and placed in the front

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seat of Officer Ramirez’s vehicle. 6 (RT 303-304.)

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Officer Ramirez, then, proceeded to the Baldwin Park CHP office so Bonilla could take 15 16

the breathalyzer test. (RT 305.) After observing Bonilla for at least 15 minutes, he had her blow

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into the breathalyzer machine but was unable to obtain a sufficient sample. (RT 306, 311-312.)

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After giving Bonilla several opportunities to give a sufficient breath sample and she was unable

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to do so, he advised her that they were going to the hospital so she could give a blood sample.

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(RT 312.) 21 22

Bonilla was taken to the Queen of the Valley Hospital at 2:45 a.m. (RT 318-319.) At

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3:15 a.m., she signed the consent form for the blood draw. (RT 322.) Officer Ramirez uncuffed

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Bonilla so that she could sign the form. Afterwards, he had her sit back on the chair while the

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hospital staff gathered their equipment. (RT 323.) Officer Ramirez was about eight feet away, 26 27

directly across from Bonilla. (RT 323-324.)

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Officer Ramirez testified that he placed Bonilla in the front seat because it is their policy that if they do not have a cage car, it is acceptable to put an arrestee in the front right seat of the patrol car. (RT 304.)

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As Officer Ramirez and Bonilla waited for the hospital personnel, Bonilla started asking questions such as how long the process was going to take and where she was going afterwards.

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(RT 324.) Ramirez told Bonilla they were going to the jail facility, and did not answer any other 4 5

questions. (RT 324.)

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Bonilla then started yelling, “What the fuck are you going to do?” over and over again.

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(RT 324-325.) Officer Ramirez walked over to Bonilla, and told her to stop screaming. (RT

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325.) Bonilla continued to yell, and Officer Ramirez again told her to stop or that she would be 9 10 11

sorry. (RT 326.) Bonilla got out of her seat and continued yelling in Officer Ramirez’s face. (RT 327.)

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Officer Ramirez was about two feet away from Bonilla when she got up and started

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screaming at him. As Bonilla continued to yell and Officer Ramirez told her to stop, it appeared

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that Bonilla was about to “headbutt” Ramirez. (RT 327-328.) Officer Ramirez reacted by 15 16 17 18 19

getting Bonilla in a control hold. (RT 329.) Officer Ramirez grabbed Bonilla’s hand and put it towards her back, and turned her away from him. (RT 329.) According to Ramirez, Bonilla tried to break away by kicking with the back of her feet so he pushed her forward to the wall and she hit the “auto scope” that was mounted on the wall.

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(RT 330-331, 332.) Bonilla continued to scream, and Officer Ramirez was not able to handcuff 21 22

her so he took her to the ground where she fell face first. (RT 332-333.) Officer Ramirez called

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for his partner who had gone to the car to obtain some forms. (RT 334.) With the help of his

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partner, Officer Ramirez was able to handcuff Bonilla. (RT 336.) Officer Ramirez informed the

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hospital staff that there was not going to be a blood test. (RT 336.) 26 27 28

Bonilla was placed in the front seat of the patrol vehicle. (RT 337.) Officer Ramirez put the seatbelt on her and pushed the seat all the way forward. (RT 337.) As Officer Ramirez

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talked to the other officers who responded to the hospital, he heard something was being kicked and observed Bonilla kicking the windshield until it shattered. (RT 338-339, 340.) Officer

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Ramirez requested for an officer in charge to respond to the location. When they arrived, they 4 5

assisted him with Bonilla, who was placed in a nylon leg restraint and placed in the back seat of

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the patrol car. (RT 340-341.)

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Bonilla was crying the rest of the time after that. Officer Ramirez noticed an injury to

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Bonilla’s left eye. (RT 345.) The whole incident lasted around seven and a half hours, from 9 10 11 12

1:50 a.m. to almost 10:00 a.m. (RT 345.) Matthew Vice of the California Highway Patrol also testified about the PAS device that was used by Officer Ramirez to test Bonilla. (RT 520-535.)

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Defense Case Jorge Uranga and Michelle Garcia testified that they each knew Bonilla and knew her to be an honest person. They also testified that she was a peaceful and non-violent person. (RT

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512-518.) 18 19

Ruben Guardado was the owner of the Honda that Bonilla was driving and testified to

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issues with the driver’s side window of the vehicle: once it was rolled down, it had to be

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manually rolled up. (RT 554-555.)

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Bonilla then testified on her behalf. According to Bonilla, the week of the incident, she

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had final exams. On the night she was arrested, she was on her way to a friend’s house to study 24 25

for another exam the following day. (RT 557-558, 561-563.) Bonilla did not realize that the 10

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westbound freeway was closed. She got on the Francisquito onramp and did not see any cones

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blocking the entrance. (RT 563-564.)

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Bonilla saw that the police was behind her but she did not stop immediately because there was no shoulder lane on the 10 freeway, and did not feel safe just stopping in the middle of the

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road. Since she was traveling alone, she also decided it was best to stop where there were people 4 5

and a lot of light around. Therefore, Bonilla went northbound on the 605 and drove to the

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nearest exit. (RT 569-570.)

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Bonilla testified as to the details of her encounter with Officer Enriquez, and then, Officer

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Ramirez. As to the incident in the hospital, Bonilla testified that while sitting in the waiting area, 9 10

she asked Officer Ramirez questions and tried to make small talk, but he responded rudely to her.

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(RT 629-630, 632.) After Bonilla asked about the process following the blood work, a verbal

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exchange occurred between her and Officer Ramirez. (RT 633.) He told her she was not the one

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to be asking questions because he was the one with the badge. (RT 633.) Officer Ramirez told

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Bonilla that she was going to jail and that she was getting a DUI because she admitted to 15 16

drinking alcohol. (RT 637.) Bonilla became upset and reacted verbally. (RT 637.) Officer

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Ramirez appeared upset, as well, and stood in front of Bonilla, telling her, “You can deny it all

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you want. I know you’ve been drinking and that’s exactly what I’m going to put in my report.”

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(RT 639.)

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A nurse had been standing nearby, but walked away. Bonilla stayed quiet for about two 21 22

minutes, and then mumbled under her breath, “I can’t believe this.” (RT 639.) At that point,

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Ramirez took two steps towards Bonilla and said, “What did you say to me?” (RT 640.) Bonilla

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expressed that she felt that she was treated unfairly. Officer Ramirez then leaned in, came up to

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Bonilla’s face, started pointing and asking her who she thought she was. (RT 641.) When 26 27 28

Bonilla said, “I can’t believe you are that type of officer,” Ramirez stared at her as if he was going to hit her. (RT 642.)

Instead, Ramirez lifted Bonilla up off the chair and turned her

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around. With one hand, he took both of Bonilla’s hands and put it behind her back, and then, with his other hand, he pushed Bonilla against the wall and leaned his whole weight into her

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back. (RT 643.) Bonilla’s head hit some kind of rack. 4 5

According to Bonilla, she did not try to fight Officer Ramirez. She did not yell or

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struggle. (RT 646-647.) When he told her to get on her knees, she did and he put her upper

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body on the ground. (RT 647.) Bonilla was in shock and her head was hurting very badly. (RT

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648.) 9 10

After she was handcuffed, Bonilla asked for help. When the nurses asked her what

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happened, she told them that Officer Ramirez hurt her. (RT 684-685.) Officer Ramirez, then,

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picked Bonilla up from the ground by her shoulder, and slammed her to the other wall. (RT

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685.) Bonilla had both hands behind her back at this point and was cuffed. (RT 686.) After she

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hit the wall, Bonilla continued to ask for help from the nurses and there was no response. (RT 15 16

686.) While she was against the wall, Bonilla started yelling and Officer Ramirez told her to be

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quiet. (RT 687.) Ramirez handed Bonilla over to Bernardino, who walked her outside to the

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vehicle. (RT 688-689.)

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Bonilla was placed in the front passenger seat of the vehicle. At that point, she was

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crying, scared, and was in shock. She was also in a lot of pain. Her head was throbbing, and her 21 22

vision was blurred. (RT 692.)

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While in the front seat, Bonilla observed Officer Ramirez approach her side of the

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vehicle. She was still crying and was afraid that he was going to beat or physically abuse her, so

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she brought her knee towards her head. As she did that, Bonilla’s lower leg jolted and went 26 27 28

straight towards the ceiling of the vehicle. (RT 693-695, 696.) The tip of Bonilla’s shoe hit the top portion of the windshield and sent a crack all the way down to the middle of the windshield.

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(RT 697.) According to Bonilla, she did not intend to cause any damage to the patrol car. (RT 697.)

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Bonilla was pulled out of the vehicle by Officer Ramirez and three or four other officers. 4 5

(RT 698-699.) They put her on the ground face down. The officers surrounded her and about

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one to two officers assisted in tying the back of her hands to the back of her ankles so she was

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hyper-extended in a very uncomfortable position. (RT 701.)

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Bonilla was later taken to St. Francis Medical Center after the jail would not admit her 9 10

because of her injuries. (RT 709-711, 713.) She was at the hospital for about three and a half

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hours. They took x-rays of her head, treated her eye, and gave her medication. (RT 714.) After

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she was treated at St. Francis, they took her back to Century jail facility around 7:00 a.m. (RT

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714.)

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According to Bonilla, the markings on her face remained for a really long time. The 15 16

redness stayed for about four or five weeks. She now has a “corner scar.” (RT 719.)

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ARGUMENT

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I

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TRIAL COURT ERRED WHEN IT EXCLUDED

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THE HOSPITAL VIDEO FROM EVIDENCE

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A. Background 23

In his opening statement, defense counsel informed the jury that he had a video that will

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show that Officer Ramirez’s account of the incident at the hospital is not accurate. Defense

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counsel described what the video would show and held up the DVD to the jury. 7 The following

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Specifically, defense counsel stated,

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day, the prosecutor brought to the court’s attention that it had issues with the admissibility of the hospital video. The video had an eleven-second gap that the prosecutor was concerned would be

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where Officer Ramirez will say was the point when Bonilla stood up and threatened him. (RT 4 5

112.)

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The court acknowledged that it had viewed the video when it ruled on the Pitchess

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motion, and that it had noticed the 11-second gap. (RT 112.) The court inquired from the

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prosecutor as to why the issue was not brought up in a motion in limine to which the prosecutor 9 10

responded that it planned to object at the time the video was to be introduced, but defense

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counsel “held the disk up and showed it to the jury [ ] without any discussion of admissibility.”

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(RT 113.)

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After listening to defense counsel’s offer as to the video, the court reserved the issue for a

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later ruling prior to Officer Ramirez’s testimony. (RT 115.) The court also noted that when it 15 16 17 18 19

viewed the video for the Pitchess hearing, it was informed that the video had not been edited and was an exact copy of the video from the hospital. (RT 115.) Prior to Officer Ramirez’s testimony, the court held a hearing regarding the admissibility of the video from the hospital. (RT 225.) Officer Ramirez testified at the hearing, and the court

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“[Y]ou don’t have to take my word for it because we have an actual video of the incident. Police officer apparently was not aware there was a video at the time he placed Ms. Bonilla in the chair. The video contradicts the police officer. The video shows Ms. Bonilla.

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“You’ll see the video for yourself. It shows Ms. Bonilla sitting down. She never gets up. She never starts yelling. She never is flailing her arms. She’s just sitting down there. Police officer for whatever reason starts talking to her and gets mad at her. You’ll see in the video he slams her to the other wall and after that he slams her to the floor. You’ll see that video for yourself. “By the way, that video was not taken by anybody but the hospital. It’s an (sic) video from the hospital itself. It wasn’t produced by the police or defense or by a passerby. It’s a hospital video.” (RT 91-92.)

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found that the video was authenticated by Officer Ramirez. The court, however, excluded the video on Evidence Code 352 grounds. (RT 235-240, 241-243.)

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Officer Ramirez testified without any mention of the video. The day after Officer 4 5

Ramirez finished his testimony, defense counsel made a motion for the court to reconsider its

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ruling on the video. (RT 540.) Defense counsel argued that Ramirez’s testimony contradicted

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what was depicted on the video, and that the video was needed for impeachment purposes. 8 (RT

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540-542.) 9

After again reviewing the video several times, the court denied the defense’s request to

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use the video to impeach Officer Ramirez. According to the court, it did not find that Officer

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Ramirez was dishonest in his testimony. The court also found that the video was not a fair

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depiction of what occurred because of the missing eleven seconds. (RT 602-605.)

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B. Legal Standard 15

Evidence Code section 352 gives the trial court discretion to exclude evidence if the

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evidence’s “probative value is substantially outweighed by the probability that its admission will

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Specifically, defense counsel argued, “It’s unfair to allow the jury to believe that what Mr. Ramirez described yesterday is what actually happened. We know that’s not correct. Now, the court is concerned about the 11 second gap. I’ve went over that video a number of times. The only think I can figure out is a couple of things. No. 1, it has more than one gap. It jumps around. “So, I think what is happening, your honor, and this didn’t occur to me until I reviewed it last night that the video is motion video meaning that it will not activate until something moves in front of the camera. That’s consistent with the movements in the video. Sometimes I think the 11-second gap is where nobody was moving. They were just standing around. “As the court recalls there is Mr. Ramirez standing there with something in his hand with some sort of clipboard then Ms. Bonilla was sitting down with her legs crossed and nothing else. There was people moving in the back. That’s why the video was on. I think when Mr. Ramirez stopped moving the people in the back just floated away. That’s when the video stopped. “When people are getting started the video re-started. As the court recalls, the People indicated last week that they spoke to somebody from head of security at the hospital. They told the prosecutor that that video that was produced is what they had which indicates that nothing was wrong with the video other than the skips and again the skips I think are attributable to the fact that there was lack of motion but, more importantly, your honor, I think that video should be produced.” (RT 541-542.)

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(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

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“In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) 4 5

the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use

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of the videotape would assist the jurors in their determination of the facts of the case or serve to

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mislead them.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1114.)

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An abuse of discretion standard of review applies to any ruling by a trial court on the 9 10

admissibility of evidence. This includes evidentiary rulings which “turn on the relative probative

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value and prejudice of the evidence in question.” (People v. Jablonski (2006) 37 Cal.4th 774,

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805, citations omitted.)

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C. Trial Court Error in Excluding the Hospital Video

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Bonilla contends that the trial court erred when it excluded the hospital video from 15 16

evidence. Here, the hospital video was authenticated by Officer Ramirez, but the court excluded

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it on Evidence Code section 352 grounds because an eleven-second gap on the video was

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prejudicial to the prosecution. Specifically, the court found that the eleven-second gap was

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“right at the beginning of the incident so we don’t have the initial contact of the incident,” and

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thus, “it does not accurately depict what it purports to represent.” (RT 604.) The court also 21 22

found that since Officer Ramirez testified and Bonilla was also on the stand testifying, “the[ir]

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testimony would be a better indicator of what occurred rather than looking at a video that is

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missing 11 seconds right at the pertinent part of the incident.” (RT 604.)

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The court’s ruling, however, was in error because notwithstanding the eleven-second gap, 26 27 28

the video was (1) a reasonable representation of the incident at the hospital, and (2) the use of the video would have assisted the jurors in determining the credibility of the witness, i.e. Officer

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Ramirez. Here, both Officer Ramirez and Bonilla testified and provided different versions of the incident at the hospital. Accordingly, as in all cases, a witness’s credibility is pertinent, and thus,

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the probative value of the video outweighed any prejudicial effect from the eleven-second gap. 4 5

When section 352 speaks of excluding evidence having “substantial danger of undue

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prejudice” it looks to situations where evidence may be misused by the jury. Nothing suggests

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that the hospital video would “arouse the emotions of the jurors” or “be used in some manner

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unrelated to the issue on which it was admissible.” (People v. Edelbacher (1989) 47 Cal.3d 983, 9 10 11

1016.) Again, the intended use of the video was to impeach Officer Ramirez, and the trial court’s ruling limited Bonilla’s ability to challenge a crucial prosecution witness.

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Furthermore, Bonilla was charged with a violation of section 148(a)(1). Before a person

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can be convicted of section 148(a)(1), “there must be proof beyond a reasonable doubt that the

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officer was acting lawfully at the time the offense was committed.” (In re Joseph F. (2000) 85 15 16

Cal.App.4th 975, 982.) This “‘rule flows from the premise that because an officer has no duty to

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take illegal action, he or she is not engaged in ‘duties’ for purposes of an offense defined in such

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terms, if the officer’s conduct is unlawful …” (Id. at 982, quoting In re Manuel G. (1997) 16

19

Cal.4th 805, 815.).) “[I]t is a public offense for a peace officer to use unreasonable and excessive

20

force in effecting an arrest.” (People v. White (1980) 101 Cal.App.3d 161, 167.) (Internal 21 22

citations omitted.)

23

Here, the hospital video was independent, objective and admissible evidence for

24

Bonilla’s defense of unreasonable and excessive force used by Officer Ramirez. Accordingly,

25

the trial court’s exclusion of the hospital video violated Bonilla’s rights to present a defense and 26 27

a fair trial.

28

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 15


1 2

Moreover, although the court was concerned about the eleven-second gap, Officer Ramirez (and/or Bonilla) could have testified (as they did) as to what happened during that gap,

3

and it would be up to the jury to decide which version they believed. However, the court’s ruling 4 5

improperly assumed that Officer Ramirez’s account of what happened during the eleven-second

6

gap was what in fact transpired. In such ruling, and the court’s later finding that Officer

7

Ramirez’s testimony did not “appear to be far off from what is depicted in the video,” the court

8

improperly usurped the role of the jurors as fact-finders. Accordingly, the court’s ruling was 9 10

erroneous, and thus, a reversal of the judgment is necessary.

11

II

12 13

THE COURT ERRED WHEN IT DENIED APPELLANT’S

14

MOTION FOR A MISTRIAL 15 16

“A mistrial should be granted if the court is apprised of prejudice that it judges incurable

17

by admonition or instruction.” (People v. Haskett (1982) 30 Cal.3d 841, 854, citing People v.

18

Woodberry (1970) 10 Cal.App.3d 695, 708.)

19

“Whether a particular incident is incurably

prejudicial is by its nature a speculative matter, and the trial court is vested with considerable

20

discretion in ruling on mistrial motions.” (Id. at 854, citing Illinois v. Somerville (1973) 410 U.S. 21 22

458, 461-462.) Accordingly, orders denying mistrials are reviewed for abuse of discretion.

23

(People v. Bolden (2002) 29 Cal.4th 515, 555.)

24

After the court granted the People’s motion to exclude the video, defense counsel moved

25

for a mistrial on the basis that he already informed the jury in opening statements that there was a 26 27 28

video of the incident that the defense would be showing to impeach Officer Ramirez’s testimony. Defense counsel argued that since the video would not be shown to the jury, defense counsel’s

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 16


1 2

credibility with the jury would be “at issue.” (RT 244.) The court denied the motion for a mistrial. The court later instructed the jury with the following:

3

“The court made a ruling after the opening statement that the video would not be shown. The ruling was not made until after the opening statement was given. Defense counsel at the time of the opening statement was not aware that the video would not be allowed to be shown. Jurors are not to speculate as to why the court ruled as it did regarding the video. Remember, opening statements and closing arguments are not evidence. You must consider each count separately and return a separate verdict for each one.” (RT 805.)

4 5 6 7 8

Bonilla contends that the trial court abused its discretion when it denied her motion for a 9 10

mistrial. Specifically, Bonilla asserts that exclusion of evidence that had been promised to the

11

jury is the kind of situation that could not be cured by admonition or instruction. Even if the jury

12

was instructed, as the court did here, the jury would still know that there was evidence that was

13

promised to them and was not given.

14

Here, although the court instructed the jury that it should not speculate as to its ruling, 15 16

damage had already been done to Bonilla’s case by the video not being shown to the jury. One,

17

the jury was not instructed about the video until after both parties had rested, and therefore, it is

18

reasonable to presume that the jury went through the entire trial waiting for the video. 9 As the

19

trial continued without any mention or showing of the video, defense counsel and Bonilla

20

reasonably lost credibility with the jury. Accordingly, the court’s exclusion of the video and 21 22

denial of Bonilla’s motion for a mistrial violated Bonilla’s rights to present a defense and a fair

23

trial before an unbiased jury.

24

Furthermore, the trial court erred when it denied defense counsel’s request to instruct the

25

jury about the circumstances surrounding the exclusion of the video, i.e. that the People failed to 26 27 28

9

In his motion for a new trial, defense counsel included a declaration regarding his conversation with several jurors after the verdict and the jurors expressed that they were looking for the video that was promised to them during opening statements. (CT 167-168.)

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 17


1 2

object to the admission of the evidence until after opening statements. Bonilla contends that the court’s instruction only further diminished defense counsel’s credibility in stating that defense

3

counsel “was not aware that the video would not be allowed.” The court’s erroneous denial of 4 5

the motion for a mistrial warrants reversal of Bonilla’s conviction.

6 7

III

8

THE TRIAL COURT ERRED WHEN IT DID NOT 9 10

INSTRUCT THE JURY ON UNANIMITY

11

The trial court has a sua sponte duty to give a unanimity instruction if the prosecution

12

presents evidence of multiple acts to prove a single count. (People v. Russo (2001) 25 Cal.4th

13

1124, 1132.) The Supreme Court found that “when the evidence suggests more than one discrete

14

crime, either the prosecution must elect among the crimes or the court must require the jury to 15 16

agree on the same criminal act. On the other hand, where the evidence shows only a single

17

discrete crime but leaves room for disagreement as to exactly how that crime was committed or

18

what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the

19

cases often put it, the ‘theory’ whereby the defendant is guilty.” (Id. at 1132.)

20

Here, the prosecution presented evidence of multiple acts to prove a violation of section 21 22 23 24 25 26 27 28

148. The court instructed the jury with the following: “The People allege that the defendant resisted or obstructed or delayed Jose Ramirez by doing the following: [ ] One, failure to follow Officer Ramirez’s instructions to lower her voice and stop yelling while at the Queen of the Valley Hospital; two, standing up and getting in Officer Ramirez’s face while Officer Ramirez was waiting to complete a blood draw at Queen of the Valley Hospital; three, threatening to headbutt Officer Ramirez while Officer Ramirez was waiting to complete a blood draw at Queen of the Valley Hospital; four, ignoring Officer Ramirez’s instructions to stop resisting while Officer Ramirez held her to the wall at Queen of the Valley Hospital; five, ignoring Officer Ramirez’s instructions to stop resisting while she was on the emergency room floor at Queen of the Valley

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 18


1 2

Holes (sic); six, ignoring Officer Ramirez’s instructions to stop resisting while she was on the ground in the hospital parking lot at Queen of the Valley Hospital, and seven, shattering Officer Ramirez’s patrol car windshield.” (RT 800.)

3

Accordingly, since multiple acts were presented to prove Count 2, the court had a sua 4 5

sponte duty to instruct on unanimity, and the court’s failure to do so is reversal error.

6

Furthermore, the court erred when it included, over defense’s objection, the act of

7

shattering the windshield as one of the acts for Count 2. Shattering the windshield is the act

8

charged in Count 3 (vandalism), and the elements of Counts 2 and 3 are completely different. 9 10

By the court allowing the jury to consider the act alleged in Count 3 as also an act alleged in

11

Count 2, it denied Bonilla of her right to a fair trial and due process by eliminating her right to an

12

independent unanimous verdict as to each particular count.

13

The numerous trial errors in this case warrant a reversal of Bonilla’s conviction.

14 15

CONCLUSION

16 17 18

For all of the foregoing reasons, Bonilla urges this Court to reverse the judgment, set aside her conviction, and remand the matter to the trial court for further proceedings.

19 20

November 4, 2013

Respectfully Submitted,

21 22 23 24

________________________________________ Mae G. Alberto Attorney for Appellant-Defendant Aloni Bonilla

25 26 27 28

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 19


1 2

CERTIFICATE OF WORD COUNT By relying on the word count of the computer program used to prepare the Appellant’s

3

Opening Brief, I certify that there are approximately 5,557 words in this pleading. 4 5 6 7

____________________________ Mae G. Alberto Attorney at Law

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 20


1 2

DECLARATION OF SERVICE BY MAIL The undersigned declares under the penalty of perjury that the following is true and

3

correct: 4 5 6 7

I am over the age of eighteen, not a party to this cause, and my business address is 5777 West Century Boulevard, Suite 750, Los Angeles, California 90045. On the date of execution hereof I served the attached document by depositing a true copy

8

thereof, enclosed in a sealed envelope with postage thereon fully prepaid in the United States 9 10

mail in the County of Los Angeles, California, addressed as follows:

11 12 13 14 15 16

Los Angeles Superior Court Attn: Appellate Division 111 North Hill Street, Rm. 607 Los Angeles, California 90012 Office of the District Attorney County of Los Angeles Appellate Division 320 West Temple Street, Suite 540 Los Angeles, California 90012

17 18 19

West Covina Courthouse Attn: Honorable Gloria White-Brown 1427 West Covina Parkway West Covina, California 91790

20 21 22 23

Aloni Monique Bonilla 855 Oakman Drive Whittier, California 90601 Executed on November 4, 2013, in Los Angeles, California.

24 25 26 27

__________________________________ Jayne Ramirez Declarant

28

APPELLANT’S OPENING BRIEF – ALONI BONILLA - 21

OPENING BREIF  

INTRODUCTION: PG. 1-3 PROSECUTION CASE:PG. 4-8 DEFENSE CASE: PG. 8-11 ARGUMENT 1: PG. 11-16 ARGUMENT 2: PG. 16-18 ARGUMENT 3: PG. 18...

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