People v. Sims CA2/6

Filed 7/16/14 P. v. Sims CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B248126 (Super. Ct. No. TA126450-01) Plaintiff and Respondent, (Los Angeles County)

v.

LAMONTE DESHAWN SIMS,

Defendant and Appellant.

LaMonte DeShawn Sims appeals his conviction, by jury, of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (A)(1).)1 The jury found appellant not guilty of kidnapping. (§ 667, subd. (a)(1).) Appellant, who has one prior felony conviction for bank robbery (18 U.S.C.A. § 2113, subd. (a), (d)), was sentenced as a second-strike offender to a term of eight years in state prison. He contends: CALCRIM No. 875, a pattern jury instruction defining the elements of assault by means of force likely to produce great bodily injury, improperly pinpoints the victim's injuries; the trial court erred when it denied his request to absent himself from the trial; his due process and confrontation rights were violated because the victim did not testify; the prosecutor knowingly presented false testimony; and the judgment is not supported by substantial evidence. We affirm.

1 All statutory references are to the Penal Code unless otherwise stated. 1

Facts Yvette Lopez lived across the street from King Taco, a fast food restaurant in Lynwood. At about 10:50 a.m. on January 3, 2013, Lopez heard Bryanna Warren screaming for help. When she looked out her front window, Lopez saw appellant screaming at Warren who was walking backwards, away from him. Appellant grabbed Warren's arm and began pulling her toward the back of the parking lot. Warren struggled to get away from appellant. At one point, she was on the ground, being dragged by him. Lopez saw appellant hit Warren in the face, with a closed fist. She called 911. Lillie Bills arrived at the King Taco around the same time. As Bills was retrieving her wallet from the trunk of her car, she heard Warren screaming for help. When she looked up, she saw Warren walking backward as appellant walked toward her. Appellant hit Warren about three times with a closed fist. Bills could hear Warren saying, "Don't hit me. Don't hit me." Bills went inside the restaurant. When she saw that no one inside seemed to be aware of the incident, she went back outside to get her cell phone from her car. Initially, Bills could not see appellant and Warren. She heard Warren scream again and then located the pair toward the back of the parking lot. Appellant was "stomping and kicking" Warren who was on the ground. Sheriff's deputies arrived at the parking lot before Bills could place her call. By the time the deputies reached Warren and appellant, the couple was in appellant's car. Warren was crying loudly and holding her hand to the right side of her face. Her left eye was red and swollen. She had her other hand wrapped around her side, as if she were in pain. Warren's clothing was soiled on the right side, from the bottom of her pants all the way to the midsection of her jacket. Warren denied that anything had happened to her. She refused the deputies' offer of medical treatment. Warren did not testify at either the preliminary hearing or the trial. Portions of the incident were captured on security video. The video shows appellant and Warren walking together; it does not show appellant striking Warrant.