Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 06HF1866, Derek Guy Johnson, Judge.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Catherine Coccomo Cleary of inflicting corporal injury on her spouse while having a prior conviction for the same offense (Pen. Code, § 273.5, subd. (e); all statutory references are to the Penal Code unless noted) and violation of a protective order (§ 166, subd. (c)(1)). Defendant argues the trial court erred when it instructed on consciousness of guilt concerning the suppression or fabrication of evidence. Defendant also challenges her conviction for violating a protective order, arguing the underlying protective order was invalid. Finally, defendant challenges the sufficiency of the evidence to support the finding she suffered prior convictions for spousal abuse and complains the court failed to submit the prior conviction allegations to the jury.
We conclude the evidence supported the consciousness of guilt instruction and defendant forfeited the issue of whether the underlying protective orders were valid. We also reject defendant’s attack on the finding she suffered the alleged priors based on her posttrial stipulation. Accordingly, we affirm the judgment.
I
Facts and Procedural Background
The tumultuous 13-year marriage of Kevin Cleary and defendant often was marred by violent disagreements stemming from their mutual failure to cope with the ravages of alcoholism. The couple received treatment for their disease in 1997, but resumed drinking after several years of sobriety. Their abusive drinking inevitably required law enforcement intervention, resulting in Kevin’s conviction for domestic violence in 1996 and defendant suffering three prior convictions for injuring Kevin (§ 273.5), the last occurring in October 2005. Two protective orders barred defendant from contact with Kevin and the couple’s eight-year old son, Garrett, while a third prohibited violent contact. Despite these orders, Kevin and defendant were living together when the latest violent incident erupted on September 19, 2006.
We refer to Kevin by his first name for clarity and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
The incident began when defendant arrived home intoxicated around 4:00 a.m. after an evening spent celebrating her birthday with a male coworker. Kevin became angry because defendant was supposedly going out with a female friend. Kevin left the residence, and when he returned home, he discovered defendant intoxicated and empty liquor bottles lay beneath the bed. Kevin may have consumed one or two beers during this time. An argument ensued when Kevin told defendant she had not been invited to his sister’s birthday party. Defendant telephoned Kevin’s mother to protest and to “chew her out.” Upset she had yelled at his mother, Kevin berated defendant calling her several derogatory names. Defendant responded violently by scratching Kevin’s face and eye.
Officer Brian Schrieber arrived at the Clearys’ Newport Beach home around 9:00 p.m. and spoke with Kevin and defendant. Kevin explained he came home from work and found defendant inebriated. He told defendant to get off the phone and she scratched him. He did not mention calling her names or finding bottles under the bed. Defendant, who appeared agitated and intoxicated, conceded she and Kevin had argued, but denied touching her husband and claimed she did not know how he had been injured. She did not tell the officer she had been choked or injured.
Defendant testified that on the day of the incident, Kevin drove their son to school and returned home with a 12-pack of beer. He drank while they watched television in the bedroom. She began drinking wine in the afternoon. Kevin was angry because she had gone out the night before. He informed her she had not been invited to his sister’s birthday party that evening. Defendant called her mother-in-law and discovered Kevin had lied. Kevin began yelling and calling her names. He took the phone and spoke to his mother as defendant left the room. Kevin called her back to the room and she spoke with Kevin’s sister. Toward the end of the conversation, Kevin came back into the room and defendant called him a “f------ liar.” He called her “filthy names.” He demanded the phone, which was on her lap, and she refused. Kevin advanced toward her as she put the phone behind her and leaned back on the bed. He grabbed for the phone and put his hands around her throat. Afraid Kevin would hurt her, she reached up and scratched his face. He backed off and she ran out of the room.
The jury convicted defendant following a trial in November 2006. The court suspended imposition of sentence and placed defendant on formal probation for three years on various terms and conditions, including a 365-day jail term.
II
Discussion
A. The Trial Court Did Not Err in Giving an Instruction on Consciousness of Guilt
Defendant contends the trial court erred by instructing the jury they could conclude efforts to fabricate or suppress evidence reflected a consciousness of guilt. (CALCRIM No. 371.) The instruction arose from the following colloquy at trial. Kevin testified he never touched or struck defendant before she scratched him, and he denied grabbing for the phone or placing his hands around her neck. Asked again whether he grabbed for the phone or did anything to prompt defendant to lash out and scratch him, Kevin replied, “No. She told me she was going to say that when I talked to her from jail, she was going to use this choking thing.” He explained during this phone conversation “she started calling [me] a liar on the phone, telling me what is going to happen.” When Kevin informed defendant he had been subpoenaed, she replied, “Okay. Because you were choking me and that’s what happened.” Defendant disputed Kevin’s testimony, explaining to the jury that Kevin told her the prosecutor was “gunning for” her, that she was “going to get a felony,” and “do a year in jail,” and that it would “ruin [her] career.” She responded that he had lied to the police about choking her.
Based on the foregoing evidence, the trial court gave CALCRIM No. 371 to the jury: “If the defendant tried to discourage someone from testifying against her, that conduct may show that she was aware of her guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If the defendant tried to create false evidence or obtain false testimony, that conduct may show that she was aware of her guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.” (Accord, CALJIC Nos. 2.04 & 2.06.)
Defendant argues the trial court erred in giving the instruction because there was insufficient evidence to support it. She asserts the instruction “posit[ed] the falsity” of her testimony and thereby lessened the prosecution’s burden of proof.
CALCRIM No. 371 is properly given where there is some evidence in the record that, if believed by the jury, sufficiently supports an inference of consciousness of guilt. (See People v. Coffman (2004) 34 Cal.4th 1, 102 [concerning CALJIC Nos. 2.04 & 2.06].) The instruction applies when a defendant attempts to induce a witness to lie in a judicial proceeding or otherwise tries to fabricate evidence while a trial is pending. (People v. Jackson (1996) 13 Cal.4th 1164, 1225.) It serves the dual purpose of explaining to the jury that a defendant’s efforts to obtain false testimony may show a consciousness of guilt, but this evidence is not sufficient by itself to support a guilty verdict. (Ibid.)
Kevin’s testimony, along with defendant’s failure to mention the choking to the officers, supported an inference defendant attempted to persuade Kevin to falsely testify in support of her self-defense claim. Although Kevin did not believe defendant intended to persuade him to lie, the jury could draw the opposite conclusion. CALCRIM No. 371 instructed the jury to infer consciousness of guilt only if it found defendant attempted to procure false testimony. It was for the jury to determine whether defendant consciously attempted to obtain false testimony. And it was for the jury to attach “meaning and importance” to any purported attempt. Finally, the instruction admonished the jury that evidence of consciousness of guilt, by itself, did not establish defendant’s guilt. (People v. Johnson (1992) 3 Cal.4th 1183, 1236). We discern no error.
B. Defendant Forfeited Her Challenge to the Protective Orders
Defendant challenges her conviction for violating a protective order (§ 166, subd. (c)(1)), asserting the underlying orders were invalid because the issuing court had no basis to prohibit contact with her son, Garrett. We do not reach the merits of this claim because defendant forfeited this issue when she failed to contest the protective orders below.
A person subject to an injunctive order may challenge its validity when issued, or reserve that claim until a violation of the injunction is charged as a contempt under section 166. (People v. Gonzalez (1996) 12 Cal.4th 804, 818.) Thus, defendant could have collaterally challenged the validity of the order in the trial court. She failed to object, however, when the court admitted the protective orders into evidence. Defendant testified she knew about the orders and that the orders prohibited her from contacting Kevin and Garrett. Defendant’s failure to challenge the validity of the orders in the trial court prevented the prosecution from presenting facts showing the court lawfully issued the orders. Her failure to raise the issue below therefore operates as a forfeiture.
Defendant’s attack on the facial validity of the orders raises no constitutional concerns. There simply is no constitutional barrier to prohibiting contact between a parent and child under certain circumstances, such as the occurrence of parental abuse or neglect. To prevail here, defendant had to show the order as applied lacked an evidentiary basis. This she failed to do.
C. Defendant Stipulated She Suffered the Prior Convictions Alleged in the Information
Defendant contends there was insufficient evidence she suffered a prior conviction within the meaning of section 273.5, subdivisions (a) and (e). The section provides enhanced punishment for spousal abuse where the person has been convicted within the previous seven years of the same or similar violations. Defendant also complains that the trial court failed to submit the prior conviction allegations for the jury to determine. We conclude defendant’s claim is without merit because she stipulated to the three prior convictions of cohabitant abuse alleged in the information. (See § 1158 [trier of fact need not determine whether defendant suffered prior conviction if she admits it].)
True, the prosecutor did not put the stipulation on the record until sentencing, but the prosecutor’s agreement to restrict defense-damaging evidence concerning the priors to cursory propensity testimony and impeachment supports the conclusion the parties entered the agreement pretrial. So does the prosecutor’s somewhat ambiguous choice of verb tense: “[C]ounsel and I have stipulated to the priors that are alleged [i]n the . . . information.” (Italics added.) The record discloses the parties knew a finding defendant suffered the prior convictions was necessary for a felony conviction under section 273.5, subdivision (e). Indeed, the verdict form described the charged crime as “Domestic Battery Causing Injury With Prior Conviction for Violence.” The failure to submit instructions and verdict forms for a finding on the priors further supports our view the parties had a pretrial agreement to stipulate to the priors. It seems to us the only tactical explanation for a stipulation posttrial is the existence of a pretrial agreement on the priors. If defendant believes the stipulation occurred posttrial, that is a matter for the fact finding available in a habeas proceeding and not on appeal, where we must indulge in all “intendments and presumptions” to support the judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
D. Defendant Forfeited Her Claim the Posttrial Protective Orders Were Overbroad
Finally, defendant contends the court’s posttrial orders barring her from contacting her son, Garrett, are overbroad and therefore constitutionally defective. Defendant’s failure to raise the issue below forfeits the claim.
The protective order issued by the judge in the current case, which expires on November 30, 2009, provides defendant “must have no personal, telephonic, or written contact with the protected persons [Kevin Cleary and Garrett Cleary] named below,” “must have no contact with the protected persons named below through a third party, except an attorney of record,” and “must not come within [one] mile of the protected persons named below,” or their home, work or school.
The posttrial order imposed as a probation condition is similar to others previously directed against defendant. Here, Garrett witnessed defendant’s battery of his father and discovered some of the liquor bottles under defendant’s bed. (See § 1203.097 [probation in domestic violence case must include criminal court protective order protecting victim from further acts of violence, threats, and harassment, and, if appropriate, containing residence exclusion or stay-away conditions]; § 136.2 [criminal court may issue order barring contact or communication with any specified witness or any victim upon a showing of good cause].) We do not reach the merits attacking the issuance of the protective order, however, because defendant’s failure to object and make a record in the trial court precludes meaningful review. (See People v. Welch (1993) 5 Cal.4th 228 [criminal defendant cannot argue probation condition unreasonable for first time on appeal].) Consequently, there is no basis to reverse or modify the order.
III
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.