Opinion
E044382
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. HECTOR MAX HERNANDEZ, Defendant and Appellant.
Marylou Hillberg, 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, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
I. INTRODUCTION
An information alleged that, on May 27, 2007, defendant committed one count of spousal rape (Pen. Code, § 262, subd. (a)(1)) and one count of spousal battery (§ 273.5, subd. (a)). It was further alleged that defendant had one prior strike conviction (§ 667, subds. (c) & (e)(1)), which also constituted a prior serious felony conviction (§ 667, subd (a)), and one prison prior (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury acquitted defendant on the charge of rape, but convicted him on the charge of spousal battery. Following the jury trial, defendant admitted the prior strike, prior serious felony, and prison prior allegations. The trial court sentenced defendant to seven years in prison, consisting of the middle term of three years for the spousal battery conviction, doubled to six years based on the prior strike conviction, plus one year for the prison prior.
On appeal, defendant contends: (1) the trial court violated his due process right to a fair trial in instructing the jury that they should rely on their own note-taking rather than request readback of trial testimony during deliberations, and that the court put excessive emphasis on the jurys use of the written instructions, which intimidated the jury and prevented them from proffering questions to the court during deliberations; (2) the court had a sua sponte duty to instruct on self-defense or, in the alternative, that defendants trial counsel was ineffective for failing to request adequate instructions on self-defense; and (3) the court had a sua sponte duty to give a unanimity instruction on the spousal battery charge or, in the alternative, that defendants trial counsel was ineffective for failing to request such an instruction.
The court referred to the written instructions as the "answer book."
We affirm. We conclude that: (1) the trial court did not violate defendants right to a fair trial in instructing the jury regarding readback requests and questions during deliberations; (2) a sua sponte instruction on self-defense was not supported by substantial evidence; and (3) a sua sponte unanimity instruction was not required because the prosecutor made an affirmative election regarding the factual basis of the spousal battery charge. Accordingly, defense counsel was not ineffective for failing to request instructions on self-defense or unanimity.
II. FACTS AND PROCEDURAL HISTORY
The following facts underlying defendants offenses are presented in the light most favorable to the judgment. (See, e.g.,People v. Valencia (2002) 28 Cal.4th 1, 4.)
Defendant and his wife, Maricela Hernandez, were having financial difficulties. These difficulties created tension in their relationship when they became unable to make house payments. On Saturday, May 26, 2007, defendant and Mrs. Hernandez visited a refinancing office and attempted to lower their payments, but their request was denied. After returning home and putting their two children to bed, defendant and Mrs. Hernandez decided to go to a nightclub and brighten their moods.
The couple drove to Quiet Canyons nightclub in Montebello, and consumed several ounces of a vodka/brandy mixed drink in a parking lot near the club before getting in the clubs entrance line. Club security approached defendant while he was in line and denied him entry because his baggy pants did not satisfy the clubs dress code. A confrontation then broke out between defendant and club security. Defendant was temporarily restrained, but released by club security when Mrs. Hernandez spoke with them. Defendant and Mrs. Hernandez then drove home.
Defendant accused Mrs. Hernandez of flirting with club security and the two began to argue about finances and alleged infidelities while in the car. Defendant, who was driving, began to speed up. Mrs. Hernandez pushed defendant a few times, slapped at him, and told him to slow down. Mrs. Hernandez bit defendants right arm twice, and as a reflex, defendant struck her, leaving a substantial injury to her left eye. Verbal argument continued when the couple arrived home between 11:00 p.m. and 12:00 midnight. The argument lasted until 1:30 or 2:00 a.m., at which point the two then engaged in "make-up sex."
In the early morning of May 27, Mrs. Hernandez called 911 and reported that defendant had both beaten and raped her. Police arrived on scene and took photographs of Mrs. Hernandez, showing the worsening condition of her black, blue, and bloodshot eye. Mrs. Hernandez produced a clump of hair which she claimed defendant had pulled out of her scalp. Additionally, police took Mrs. Hernandezs statement that defendant had struck her with the back of his hand in the car while they were driving home, and had struck her with closed fists in their bedroom after they arrived home. She complained of pain in her left ear, arms, scalp, and upper body.
At trial, however, Mrs. Hernandez testified that the sex was consensual and she had reported the rape in retaliation against defendants alleged infidelity. Additionally, she claimed defendant reflexively struck her in the face in the car after she bit him on the arm, that the clump of hair she had produced was cut from defendants head and stored in their bedroom for donation at a later date, and that she had lied to the 911 operator both about the rape and defendants intentional physical abuse.
III. DISCUSSION
A. It is Not Reasonably Likely the Jury Interpreted the Trial Court`s Comments Regarding Testimony Readbacks and Deliberation Questions in a Way Which Violated Defendants Due Process Rights
Defendant first contends the trial court violated his due process rights by intimidating or discouraging the jury from requesting readbacks of testimony or asking questions during deliberations. Specifically, defendant points to comments the court made at the beginning of trial and while instructing the jury following the close of the evidence. We reject this claim because it is not reasonably likely that the jury interpreted the courts comments as discouraging them from requesting readbacks or asking questions during deliberations.
1. Relevant Background
Near the beginning of the trial, the court instructed the jury it could take notes during the trial and use those notes during deliberations. The court also emphasized the importance of note-taking as a means of recalling "exactly" what the witnesses said during the trial, and of eliminating the need for requesting readbacks of trial testimony during deliberations. Additionally, in instructing the jury following the close of evidence, the court told the jury that the answers to any questions it may have regarding the courts instructions could most often be found in the jury instruction book. The jury did not request any readbacks of testimony, nor did it ask the court questions during deliberations.
The court told the jury, "when youre out deliberating, this [testimony readback] may be a benefit to you to help you through to recall exactly what was said on any given topic.
"And you have a right to have that read back to you to help you through any sticky patch. But as I say that—as Ive done with every jury before you—I frown on that request. Why do I say that? Well, when youre out deliberating and discussing this case, I will have something else, no question about it. And we will be doing things on that case. And that case is entitled to a verbatim record. So my court reporters, in fact, taking down every word spoken in that matter. And as you make a request for some testimony, we have to stop our proceedings in the other subsequent matter, give her an opportunity to take a rough notes, put it in a booklet form, and after thats accomplished, physically go back and read it to you so that you can get what—the actual play on that testimony again.
"Now, make no mistake that you have a right to that, and we will do everything we can to help you if you do hit a sticky patch as youre out deliberating. We want to help resolve the matter as well. So—but as I tell you these things, also if I tell you the value of you taking your own notes before you hear any testimony, maybe we can avoid that. Maybe not. But it may be an assistance by you writing down that important thing first."
More specifically, the court told the jury, "But I am going to send back with you an answer book. Wow. An answer book. 99 percent of the time when jurors ask questions, guess what? Its in the answer book. So Im going to send that back with you. So if a question comes up, before you send me a note, go to that answer book, because its going to be there. Ill just tell you what page to go to in the answer book if you send me a note. You know what that answer book is? The jury instructions. Really. Believe me. I litigated all my life professionally, been a judge for a long time. Its there. Answer book."
2. Applicable Law and Analysis
The independent or de novo standard of review is applicable in assessing the propriety of jury instructions and whether they correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Further, implications concerning a defendants constitutional right to due process and concerns of fundamental fairness at trial are reviewed de novo. (People v. Albarran (2007) 149 Cal.App.4th 214, 229.)
Pursuant to section 1138, the trial court "must" give the jury readbacks of testimony and instruct the jury on any point of law arising in the case, if the jury so requests during deliberations. (People v. Frye (1998) 18 Cal.4th 894, 1007; People v. Anjell (1979) 100 Cal.App.3d 189, 202.) Although section 1138 is primarily concerned with the jurys right to information during deliberations, a violation of the statute also implicates a defendants right to a fair trial conducted "`"substantially [in] accord[ance with] law."" (People v. Frye, supra, at p. 1007; People v. Hillhouse (2002) 27 Cal.4th 469, 506.) In reviewing purportedly erroneous instructions, the court considers whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates defendants rights. (People v. Frye, supra, at p. 957; Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 116 L.Ed.2d 385].) In conducting this inquiry, "`"a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."" (People v. Frye, supra, at p. 957.)
The question here is whether the courts comments regarding readbacks and other questions induced the jury to refrain from proffering requests for readbacks or questions to the court during deliberations. When the courts comments are viewed within the context of its overall charge to the jury, it is not reasonably likely that the jury was induced to refrain from asking questions or requesting readbacks during deliberations.
First, the court merely stated that it would "frown" on such a request because of the inconvenience it would cause. A trial court does not commit prejudicial error when explaining to the jurors the complications involved in requesting a readback of trial testimony. (People v. Hillhouse, supra, 27 Cal.4th at pp. 506-507; see also People v. Anjell, supra, 100 Cal.App.3d at pp. 202-203.)
Moreover, the court never stated that jurors should not ask for a readback or ask questions. Defendant takes the courts "frowning" and emphasis on juror use of written jury instructions out of context in relation to the overall charge. The overall charge included the court specifically saying to the jury, "we will do everything we can to help you . . . ." Furthermore, the court clearly and consistently informed the jury of their right to have testimony reread. More specifically, the court, in commenting on jury use of the written instructions, said to review them "before you send me [the court] a note." (Italics added.) This unmistakably indicated to the jury that the court invited questions which the jurors were unable to find in their notes or answer book and in no way indicated that the court would reject their questions outright or did not want them asked at all.
Taking into consideration the trial courts repetitive instruction of the jurys right to have testimony read back during deliberations and the courts willingness to assist the jury, it does not follow that the jury was intimidated from asking for testimony readbacks or proffering questions during deliberation.
B. A Sua Sponte Instruction on General Self-defense Was Not Supported by Substantial Evidence
The trial court gave Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3471 on the right to self-defense in mutual combat situations in relation to the spousal battery charge. Defendant now claims the trial court had a duty to instruct, sua sponte, on the general right of self-defense pursuant to CALCRIM No. 3470.
CALCRIM No. 3471 was given as follows: "A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] AND [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; [¶] AND [¶] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight."
The discussion concerning jury instructions was held off the record, but it does not appear that defense counsel requested CALCRIM No. 3470 or any other instruction on general self-defense.
A trial court has a duty to instruct sua sponte on a defense "`only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citation.] Thus, when the trial court believes `there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory." (People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Gonzales (1999) 74 Cal.App.4th 382, 389.) Substantial evidence, in the context of determining whether the evidence warrants giving a particular instruction, is evidence sufficient to deserve consideration by the jury or evidence from which a jury comprised of reasonable persons could conclude that the facts underlying the instruction exist. (People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on other grounds in People v. Barton (1995) 12 Cal.4th 186, 200-201.) Doubts whether evidence is sufficient to warrant an instruction on a particular defense theory should be resolved in the defendants favor. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) Whether the proffered evidence provides the necessary support for giving the instruction is a question of law. (Ibid.) Pure questions of law are reviewed de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)
Defendant argues that the testimony of Mrs. Hernandez that defendant "gave her a black eye as a reaction when she had been hitting and pushing him while he was driving provided the substantial evidence to warrant" an instruction pursuant to CALCRIM No. 3470. He specifically argues the jury should have been instructed, in relevant part, that: "The defendant acted in lawful [self-defense] if: [¶] 1. The defendant reasonably believed that [he] was in imminent danger of suffering bodily injury . . .; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. . . ." (CALCRIM No. 3470.)
Certainly there was sufficient evidence to support the first element of the instruction. The trial record shows that defendant was driving his car fast enough that Mrs. Hernandez wanted defendant to slow down. She was slapping and hitting him as he drove and he had repeatedly asked her to stop while he batted her hands away. Mrs. Hernandez twice bit his arm. Defendant then, as Mrs. Hernandezs testimony stated, struck her left eye. Because defendant was speeding, driving a car at night, and fending off the slapping and biting of his wife, a reasonable juror could conclude that defendant believed he was in imminent danger of suffering bodily injury in that Mrs. Hernandezs actions could cause defendant to crash the car, not only injuring himself, but Mrs. Hernandez also.
There was no evidence, however, to support the second element of the instruction. Before defendant struck his wife, he had been telling her verbally to stop slapping him, and was merely shoving her hand away from his body. Her behavior continued while the two were in the car and defendant was simply able to ignore what she was doing. Additionally, after being bitten the first time, defendant reacted only by stating, "I cant believe you just bit me." Defendants actions and statement do not indicate he had a reasonable belief that his immediate use of force was necessary to defend against the danger his wife was posing by slapping and hitting him. Further, Mrs. Hernandez, testifying for her husband, repeatedly stated that he had hit her out of a "reflex" or "reaction." It follows that if defendants striking of Mrs. Hernandez was an accidental reflex or reaction, he could not have reasonably believed his immediate use of force was necessary.
Nor was there sufficient evidence to support the third element of the instruction. Defendant, judging by the eye wound suffered by Mrs. Hernandez, hit her with great force. As noted above, defendant may not use more force than was reasonably necessary to defend against the imminent danger. Mrs. Hernandez had only been slapping at defendants arm, an action defendant initially endured without doing much of anything. Taking the defendants repeated nonharmful responses to Mrs. Hernandezs actions into consideration, defendants striking of Mrs. Hernandez in the eye, leaving the mark that it did, bloodying the white of her eye, causing swelling, and leaving a substantial bruise, was not reasonably necessary to defend himself from Mrs. Hernandez.
Furthermore, CALCRIM No. 3470 was inconsistent with the defendants theory of the case. The record is replete with Mrs. Hernandezs testimony that her husband had struck her as a "reflex" or "reaction" to her biting him on the arm. During closing argument, defense counsel relied on this "reflex" or "reaction" theory, arguing, "[t]he defendant is not guilty of spousal battery if he acted without the intent required of a crime but acted instead accidentally." Again, to warrant an instruction on general self-defense (CALCRIM No. 3470), the defendant must have a reasonable belief that his immediate use of force was necessary to defend against an imminent danger. Striking someone as an accidental reflex or reaction to being bitten cannot be an action following a reasonable belief one needs to defend himself. Rather, such a strike is an accidental impulse reaction lacking the necessary reasonable belief in the need for self-defense. We therefore reject defendants claim that the court had a sua sponte duty to give an instruction pursuant to CALCRIM No. 3470.
C. The People Made an Affirmative Election Which Negated the Necessity of Giving a Unanimity Instruction
Defendants last point on appeal is that the court erroneously failed to give a unanimity instruction, sua sponte, on the spousal battery charge. (CALCRIM No. 3500.) Defendant claims the jury could have convicted him of spousal battery based on either: (1) the black eye he inflicted upon his wife in the car, or (2) the clump of hair she initially told police he pulled out of her head later that evening, and the jury may not have unanimously agreed on which of these two acts defendant actually committed. We conclude that the prosecution made an affirmative election regarding the spousal battery charge and the court, therefore, committed no error in failing to give a unanimity instruction.
A criminal defendant has a fundamental constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162, 165-173 [125 S.Ct. 2410, 162 L.Ed.2d 129].) Therefore, jurors must unanimously agree that the defendant is criminally responsible for "one discrete criminal event." (People v. Davis (1992) 8 Cal.App.4th 28, 41, italics omitted.) A unanimity instruction "is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count." (People v. Deletto (1983) 147 Cal.App.3d 458, 472.) "When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) If the prosecution elects one act among many as the basis for the offense, a unanimity instruction is not required. (Id. at p. 1536.) The prosecutors election must be clear and communicate to the jury their duty to render a unanimous decision to a particular lawful act. (Id. at p. 1539.)
In People v. Diaz (1987) 195 Cal.App.3d 1375, 1381, the absolute requirement for an unequivocal election was that it be formally made by the prosecution. The court in People v. Diaz stated, "Where no prosecutorial election is formally made, it is presumed that the first offense upon which substantial evidence is presented is the one selected." (Ibid., citing People v. Metheney (1984) 154 Cal.App.3d 555, 563, italics added.) In People v. Soto (1909) 11 Cal.App. 431, 434, the court found a "formal" election where the prosecution specifically stated, "`The prosecution will stand upon the first act of sexual intercourse which they claim that the defendant had with the prosecuting witness . . . ." (Italics added.) After this very early case, the degree of formality has gradually been eroded. The court in People v. Melhado indicated an election need not be "formal" but rather "direct" and "clear." (People v. Melhado, supra, 60 Cal.App.4th at p. 1539.) The more recent trend has become not one of formality, directness, or convincing clarity, but one of simple sufficiency, i.e., has the prosecution made an election sufficient enough to direct jury attention to the single act which the People must prove to satisfy their charge? (See, e.g., People v. Mayer (2003) 108 Cal.App.4th 403, 418, People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455.) While we are of the mind that much more is required than the mere mention of a charges factual basis, we find that in the instant case, the prosecutions unequivocal focus upon the exchange between defendant and Mrs. Hernandez while in their automobile rose well above the level of a sufficiently clear election for the spousal battery charge.
In her closing argument, the prosecutor made an election as to the spousal abuse by describing only the series of events which occurred in the car after defendant and Mrs. Hernandez left Quiet Canyons nightclub. As she began to discuss count 2, she immediately and directly spoke only about this series of events and the eye injury that was suffered by Mrs. Hernandez in the car. The prosecutor stated, "Count 2 we have spousal battery. Thats the one that I think is more straightforward. And because of the picture, theres very little way to lie or change that story. You heard M[r]s. Hernandez try to say that she was in the car and they were arguing. She put her hand on his shoulder and he pushed back. And she bit him on the back of his arm. And as a reflex, he hit backwards." There was no discussion in regards to count 2 involving any of the physical events surrounding the count 1 charge of spousal rape, the hair-pulling incident, nor any other event which may have resulted in injury to Mrs. Hernandez. Therefore, jury attention was sufficiently directed to the series of events which occurred in the car.
Furthermore, even defense counsel acknowledged, at the beginning of his closing argument, that the "hitting of [Mrs. Hernandez]" was the basis of the spousal battery charge. Defense counsel then went on to discuss the black eye, or the injury in the car, as the sole basis for the spousal battery charge. Specifically, in closing argument, defense counsel stated, "Now, he could just have easily hit her with his first like that (demonstrating). `Get off my arm. Hes driving on the freeway." Defense counsel goes so far as to affirmatively dismiss the notion that Mrs. Hernandez was struck in the eye later that night. After briefly suggesting that Mrs. Hernandez could have been struck during the alleged rape, he says, "Its more plausible and reasonable that it [the hit] happened in the car." We find there was a sufficient election by the prosecution and a concession on the part of defense counsel that sufficiently and clearly directed the jurys attention to the exchange of actions which occurred in the car.
IV. DISPOSITION
The judgment is affirmed.
We concur:
Ramirez, P.J.
Miller, J.