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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

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,
APPELLANTS OPENING BRIEF

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v.

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ALONI MONIQUE BONILLA,

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Defendant-Appellant.

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TO THE HONORABLE JUDGES OF THIS COURT:

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STATEMENT OF THE CASE

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On May 23, 2012, the District Attorneys 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
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Unless otherwise indicated, all statutory references are to the Penal Code.

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

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

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

On March 5, 2013, the parties gave their opening statements, and the prosecutions first

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

On March 6, 2013, the People moved to exclude the showing of a hospital video to the
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jury. (CT 76-77.) Defense counsel held the DVD of the video during his opening statement.

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(Reporters 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 Peoples motion to

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exclude the surveillance video from the hospital. Officer Jose Ramirez testified. The court
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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 Peoples 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
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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 defenses 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
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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 Bonillas new trial motion. (CT 180.)

On March 29, 2013, the court imposed judgment, among others, as follows: Count 1 - (1)
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36 months summary probation, (2) 96 hours in county jail with less credit for 96 hours, (3)

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

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

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

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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.
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(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
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$75.00. (CT 187.)

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

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STATEMENT OF APPEALABILITY
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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
Prosecutions Case

On March 21, 2012, Bonilla was arrested after she was observed driving through the
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closed westbound 10 freeway in the city of Baldwin Park. It was approximately 1:50 a.m., 2

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

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

onramp, facing the direction of oncoming traffic. (RT 96, 103, 109.) Upon seeing Bonillas
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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
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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.
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(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
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drivers 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

items in the vehicle.

(RT 131.)

Officer Enriquez stood to Bonillas left and illuminated

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Bonillas trunk with his flashlight. (RT 131.) Bonilla was not able to locate her drivers license

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

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

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

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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 friends house, and had nothing to drink. (RT 260-261.) Bonilla also did not have any
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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.)
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Officer Jose Ramirez.
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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

266-267.) After the field sobriety tests, Officer Ramirez had Bonilla do the Preliminary Alcohol
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Screening (PAS) test. (RT 285.) He told Bonilla she had the right to refuse the PAS test, but she

agreed to take it. (RT 291.)

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

blowing. (RT 295.) He gave her another opportunity to blow into the device, but she blew into
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the machine very light. (RT 295, 298.) Officer Ramirez, then, did the manual trap to capture a

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portion of Bonillas 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 Ramirezs vehicle. 6 (RT 303-304.)

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Officer Ramirez, then, proceeded to the Baldwin Park CHP office so Bonilla could take
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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.)
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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,
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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.

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

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

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

325.) Bonilla continued to yell, and Officer Ramirez again told her to stop or that she would be
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sorry. (RT 326.) Bonilla got out of her seat and continued yelling in Officer Ramirezs 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
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getting Bonilla in a control hold. (RT 329.) Officer Ramirez grabbed Bonillas 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
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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.)
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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

Ramirez requested for an officer in charge to respond to the location. When they arrived, they
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assisted him with Bonilla, who was placed in a nylon leg restraint and placed in the back seat of

the patrol car. (RT 340-341.)

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

Bonillas left eye. (RT 345.) The whole incident lasted around seven and a half hours, from
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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.)
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Ruben Guardado was the owner of the Honda that Bonilla was driving and testified to

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issues with the drivers 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 friends house to study
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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

road. Since she was traveling alone, she also decided it was best to stop where there were people
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and a lot of light around. Therefore, Bonilla went northbound on the 605 and drove to the

nearest exit. (RT 569-570.)

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

Ramirez. As to the incident in the hospital, Bonilla testified that while sitting in the waiting area,
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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
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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 youve been drinking and thats exactly what Im 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
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minutes, and then mumbled under her breath, I cant 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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Bonillas face, started pointing and asking her who she thought she was. (RT 641.) When
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Bonilla said, I cant 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 Bonillas 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

back. (RT 643.) Bonillas head hit some kind of rack.

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

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

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

648.)
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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
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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
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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, Bonillas lower leg jolted and went
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straight towards the ceiling of the vehicle. (RT 693-695, 696.) The tip of Bonillas 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.)

Bonilla was pulled out of the vehicle by Officer Ramirez and three or four other officers.
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(RT 698-699.) They put her on the ground face down. The officers surrounded her and about

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

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

Bonilla was later taken to St. Francis Medical Center after the jail would not admit her
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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
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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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TRIAL COURT ERRED WHEN IT EXCLUDED

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THE HOSPITAL VIDEO FROM EVIDENCE

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

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show that Officer Ramirezs 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 courts 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

where Officer Ramirez will say was the point when Bonilla stood up and threatened him. (RT
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112.)

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

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

prosecutor as to why the issue was not brought up in a motion in limine to which the prosecutor
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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 counsels offer as to the video, the court reserved the issue for a

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later ruling prior to Officer Ramirezs testimony. (RT 115.) The court also noted that when it
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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 Ramirezs 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 dont 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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Youll 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. Shes just sitting down there. Police officer
for whatever reason starts talking to her and gets mad at her. Youll see in the video he slams her
to the other wall and after that he slams her to the floor. Youll see that video for yourself.
By the way, that video was not taken by anybody but the hospital. Its an (sic) video from the
hospital itself. It wasnt produced by the police or defense or by a passerby. Its 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.)

Officer Ramirez testified without any mention of the video. The day after Officer
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Ramirez finished his testimony, defense counsel made a motion for the court to reconsider its

ruling on the video. (RT 540.) Defense counsel argued that Ramirezs testimony contradicted

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

540-542.)
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After again reviewing the video several times, the court denied the defenses 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
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Evidence Code section 352 gives the trial court discretion to exclude evidence if the

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evidences probative value is substantially outweighed by the probability that its admission will

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Specifically, defense counsel argued,

Its unfair to allow the jury to believe that what Mr. Ramirez described yesterday is what actually
happened. We know thats not correct. Now, the court is concerned about the 11 second gap. Ive 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 didnt 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. Thats
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. Thats why the video was on. I think when Mr. Ramirez stopped moving the people in the back just
floated away. Thats 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.

In ruling upon the admissibility of a videotape, a trial court must determine whether: (1)
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the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use

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

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

An abuse of discretion standard of review applies to any ruling by a trial court on the
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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
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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 dont 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
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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 courts ruling, however, was in error because notwithstanding the eleven-second gap,
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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 witnesss credibility is pertinent, and thus,

the probative value of the video outweighed any prejudicial effect from the eleven-second gap.
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When section 352 speaks of excluding evidence having substantial danger of undue

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

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

unrelated to the issue on which it was admissible. (People v. Edelbacher (1989) 47 Cal.3d 983,
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1016.) Again, the intended use of the video was to impeach Officer Ramirez, and the trial
courts ruling limited Bonillas 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
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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 officers conduct is unlawful (Id. at 982, quoting In re Manuel G. (1997) 16

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

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

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

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Bonillas defense of unreasonable and excessive force used by Officer Ramirez. Accordingly,

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the trial courts exclusion of the hospital video violated Bonillas rights to present a defense and
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a fair trial.

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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,

and it would be up to the jury to decide which version they believed. However, the courts ruling
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improperly assumed that Officer Ramirezs account of what happened during the eleven-second

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

Ramirezs testimony did not appear to be far off from what is depicted in the video, the court

improperly usurped the role of the jurors as fact-finders. Accordingly, the courts ruling was
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erroneous, and thus, a reversal of the judgment is necessary.

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II

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THE COURT ERRED WHEN IT DENIED APPELLANTS

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MOTION FOR A MISTRIAL

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

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

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

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Whether a particular incident is incurably

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

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discretion in ruling on mistrial motions. (Id. at 854, citing Illinois v. Somerville (1973) 410 U.S.
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458, 461-462.) Accordingly, orders denying mistrials are reviewed for abuse of discretion.

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

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After the court granted the Peoples motion to exclude the video, defense counsel moved

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for a mistrial on the basis that he already informed the jury in opening statements that there was a
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video of the incident that the defense would be showing to impeach Officer Ramirezs testimony.
Defense counsel argued that since the video would not be shown to the jury, defense counsels

APPELLANTS OPENING BRIEF ALONI BONILLA - 16

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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:

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.)

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Bonilla contends that the trial court abused its discretion when it denied her motion for a
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mistrial. Specifically, Bonilla asserts that exclusion of evidence that had been promised to the

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

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

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promised to them and was not given.

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Here, although the court instructed the jury that it should not speculate as to its ruling,
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damage had already been done to Bonillas case by the video not being shown to the jury. One,

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

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

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

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reasonably lost credibility with the jury. Accordingly, the courts exclusion of the video and
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denial of Bonillas motion for a mistrial violated Bonillas rights to present a defense and a fair

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trial before an unbiased jury.

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Furthermore, the trial court erred when it denied defense counsels request to instruct the

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

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object to the admission of the evidence until after opening statements. Bonilla contends that the
courts instruction only further diminished defense counsels credibility in stating that defense

counsel was not aware that the video would not be allowed. The courts erroneous denial of
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the motion for a mistrial warrants reversal of Bonillas conviction.

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III

THE TRIAL COURT ERRED WHEN IT DID NOT

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INSTRUCT THE JURY ON UNANIMITY

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

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

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

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crime, either the prosecution must elect among the crimes or the court must require the jury to
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agree on the same criminal act. On the other hand, where the evidence shows only a single

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

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what the defendants precise role was, the jury need not unanimously agree on the basis or, as the

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

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Here, the prosecution presented evidence of multiple acts to prove a violation of section
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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 Ramirezs
instructions to lower her voice and stop yelling while at the Queen of the Valley
Hospital; two, standing up and getting in Officer Ramirezs 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
Ramirezs instructions to stop resisting while Officer Ramirez held her to the wall
at Queen of the Valley Hospital; five, ignoring Officer Ramirezs instructions to
stop resisting while she was on the emergency room floor at Queen of the Valley

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Holes (sic); six, ignoring Officer Ramirezs 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 Ramirezs patrol car windshield. (RT 800.)

Accordingly, since multiple acts were presented to prove Count 2, the court had a sua
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sponte duty to instruct on unanimity, and the courts failure to do so is reversal error.

Furthermore, the court erred when it included, over defenses objection, the act of

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

charged in Count 3 (vandalism), and the elements of Counts 2 and 3 are completely different.
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By the court allowing the jury to consider the act alleged in Count 3 as also an act alleged in

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

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independent unanimous verdict as to each particular count.

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The numerous trial errors in this case warrant a reversal of Bonillas conviction.

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CONCLUSION

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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.

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November 4, 2013

Respectfully Submitted,

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

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CERTIFICATE OF WORD COUNT

By relying on the word count of the computer program used to prepare the Appellants

Opening Brief, I certify that there are approximately 5,557 words in this pleading.
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____________________________
Mae G. Alberto
Attorney at Law

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APPELLANTS OPENING BRIEF ALONI BONILLA - 20

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DECLARATION OF SERVICE BY MAIL

The undersigned declares under the penalty of perjury that the following is true and

correct:
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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

thereof, enclosed in a sealed envelope with postage thereon fully prepaid in the United States
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mail in the County of Los Angeles, California, addressed as follows:

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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

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West Covina Courthouse

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

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Aloni Monique Bonilla

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

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__________________________________
Jayne Ramirez
Declarant

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APPELLANTS OPENING BRIEF ALONI BONILLA - 21