People v. Gutierrez CA2/4

Filed 8/12/15 People v. Gutierrez CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B256582

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA104231) v.

RICARDO RAMOS GUTIERREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle, and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Ricardo Ramos Gutierrez appeals from a judgment entered after a jury 1 convicted him on one count of child abuse. (Pen. Code, § 273a, subd. (a).) The jury found true the allegation that appellant personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) Appellant was sentenced to 15 years in prison. In this appeal, appellant contends the trial court erred in refusing to instruct the jury on self-defense. Finding no error, we affirm. FACTUAL AND PROCEDURAL SUMMARY In January 2014, appellant got into an argument with his wife, Mireya Miranda. The argument escalated and Ms. Miranda struck appellant in the face, drawing blood. The couple’s son, 17-year-old Ricardo (Richie), ran into the room and began yelling at appellant, telling him to leave. Appellant told Richie, “Don’t disrespect me.” Richie responded by pushing appellant against the wall and “swinging” at him. While struggling, appellant and Richie fell onto the bed and continued fighting. The fight ended when appellant’s mother entered the room and asked what was going on. Richie had blood dripping from his ear and subsequently required three staples to his head. Appellant had a black eye and a cut on his eyebrow. Police arrived at the home and interviewed Richie and Ms. Miranda in separate rooms. Ms. Miranda appeared scared and told police that appellant had stabbed her in the past. She denied hitting appellant and stated appellant had made a fist and tried to strike her. She reported that appellant used a glass object to hit Richie. Richie told police that when he began fighting with appellant, appellant grabbed a glass bottle from the nightstand and hit him on the head with it. Richie did not indicate that he hit his head on the bed. Appellant was arrested and taken to the hospital. During the car ride, appellant denied hitting Richie with the bottle. The police did not immediately take the glass bottle into evidence, but returned five hours later to collect it. Appellant was charged with (1) assault with a deadly weapon against Richie (§ 245, subd. (a)(1)), (2) child abuse against Richie (§ 273a, subd. (a)), and (3) assault by