Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR06-6408
BLEASE, J.
A jury convicted defendant Donald Ray of false imprisonment by use of force and violence (Pen. Code, §§ 236, 237, subd. (a); count 1), assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 2), and infliction of corporal injury on a spouse or cohabitant. (Pen. Code, § 273.5, subd (a); count 3.) Following the jury trial, the trial court found true an allegation that defendant had three prior convictions for serious felonies, to wit, forcible rape, first degree burglary, and first degree robbery, pursuant to section 667, subdivision (e)(2). Defendant was sentenced to an aggregate term of 25 years to life in prison, the sentence on count 2 to run concurrently, and the sentence on count 3 stayed pursuant to section 654.
References to an undesignated section are to the Penal Code.
His claims of error relate to the trial court’s admission of evidence of prior violent conduct and the failure to give a limiting instruction regarding such evidence, the failure to notify and confer with defense counsel before responding to communications from the jury during deliberation, and the imposition of the concurrent sentence.
We shall conclude the trial court should have stayed defendant’s sentence for false imprisonment, and shall modify the judgment accordingly. We shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Donna Ray were together for seven years and married for four of those years. On July 24, 2006, they were living in room 268 at the Granada Inn in West Sacramento, Yolo County, California. Around 11:00 a.m., Donna went to the convenience store across the street to buy a 12-pack of beer for defendant. Donna stayed in the room about an hour before leaving again to go to the supermarket. During that time, defendant had one or two of the beers.
We refer to Donna Ray by her first name to avoid confusion. No disrespect is intended.
Donna took a bus to the supermarket. The couple did not have a car. She returned from the supermarket around 2:00 p.m. She noticed the 12-pack of beer had been consumed, and defendant appeared intoxicated. Defendant was angry because he thought she had left with another man. He started yelling at her, then began hitting her. He hit her face, head, and arms with his fists. He grabbed her hair and tossed her around the room. When she fell to the ground, he kicked her. She cried, but did not scream, because she was afraid he would hurt her even worse if she did.
Defendant told Donna that if she ever tried to leave, he would kill her. She thought this meant he would kill her if she left the room and kill her if she left “the marriage.” “[H]e kept telling me that [if] I left with another man . . . he would kill me.” At one point, Donna testified defendant put a knife to her throat, and told her he would kill her. She did not try to leave “[b]ecause I was afraid if I tried to leave or call the police, he would kill me.”
The beating continued, on and off, throughout the night. The next morning, sometime between 8:00 and 10:00, Donna told defendant she was going to check the mail at their post office box in Fair Oaks, and left. Donna went to the post office first, then to the hospital because she was having trouble walking. The hospital staff contacted the police around 4:00 p.m. The police contacted her at the hospital, and she told them what had happened.
Donna had bruises around her eye, on her neck, under her chest, on her left thigh, on her hands, shoulder, arms, and all over her back. She had swelling on her head, and a cut on her ear. Officers went to defendant’s motel room, and arrested him.
DISCUSSION
I
Evidence of Prior Acts
The prosecutor asked to approach the bench during her examination of Donna, and an unreported discussion took place. Thereafter, the prosecutor asked whether defendant had beaten Donna before, and Donna replied that he had done so once before. Defense counsel interjected, “Just for the record, I would object because I have no notice of what this entire thing is about.” The court responded, “Okay.” The prosecutor continued, by asking Donna whether any other instances or reasons made her afraid of defendant. Donna responded that defendant had a criminal background, and that some of that background was violent. When the prosecutor asked Donna if she were aware of this background at the time of the attack, defense counsel objected, citing Evidence Code sections “352 [and] 1101.” The trial court overruled the objection, stating, “It is one of the elements.” Donna testified that knowing defendant had a violent background made her fearful for her life.
Defendant argues the evidence of his prior bad acts was improperly admitted. We disagree.
Evidence Code section 1101 provides that evidence of a person’s character or of a character trait, including specific instances of conduct, is inadmissible to prove his or her conduct on a particular occasion. Such evidence may be admitted, however, if it is relevant to prove some fact “other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) Some examples of facts on which such evidence is admissible are, “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented . . . .” (Ibid.)
Evidence Code section 1109, subdivision (a)(1) provides that section 1101 does not make evidence of a defendant’s commission of other domestic violence inadmissible where the defendant is accused of domestic violence. Any evidence offered under Evidence Code section 1109 must be disclosed to the defendant. (Id. at subd. (b).) No disclosure pursuant to the statute took place here. However, it does not appear that the evidence was admitted for the purpose of proving defendant’s disposition to commit the crime, but was instead admitted under an exception to section 1101 to prove some other fact. Thus, we need not consider whether the trial court erred in admitting the evidence pursuant to Evidence Code section 1109.
In the case before us, it is undisputed that Donna was beaten severely. There was medical testimony regarding her injuries, and the jury was shown pictures taken at the hospital. The theory of the defense was that someone else caused the injuries, most likely between the several hours that lapsed between the time she went to the bus between 8:00 and 10:00 a.m. the morning after the attack, and 4:00 p.m. when the hospital notified the authorities of the beating. Thus, the identity of the attacker was a material issue. Defense counsel argued to the jury that it was unlikely defendant had attacked Donna in their motel room because “there weren’t any police calls, nobody called about it, and the manager of the Granada Inn said she didn’t get any complaints.”
The evidence of defendant’s prior domestic violence and the evidence of his prior violent crimes were both relevant to explain Donna’s failure to scream or call for help during the attack. The prosecution necessarily had to answer a predictable question in the mind of the jurors: if defendant beat Donna over a period of time when they were in the motel room, why did Donna not scream for help, or try to run away, or call the police? The prosecutor attempted to show by the evidence of defendant’s prior violent acts and Donna’s knowledge of such acts, that she was too afraid of him to scream or call for help.
Additionally, the prior instances of domestic abuse were relevant to the disputed issue of identity. When a defendant is charged with a violent crime, prior assaults against the same victim are admissible based solely upon the consideration of identical perpetrator and victim, where the evidence is offered on disputed issues such as identity, intent, or motive. (People v. McCray (1997) 58 Cal.App.4th 159, 172; People v. Zack (1986) 184 Cal.App.3d 409, 415.) Evidence of prior quarrels between the same parties is relevant on the issue whether the accused committed the charged acts. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585.)
Thus, prior acts of violence against Donna were relevant to the issue of identity, and under these circumstances, Donna’s knowledge of defendant’s prior convictions for violent offenses were relevant because they explained why Donna was too afraid to get help during the attack.
Defendant argues the evidence of his past domestic violence and past convictions should have been excluded because the probative value of the evidence was substantially outweighed by the probability that its admission would result in undue prejudice. Undue prejudice is not evidence that tends to prove guilt, but evidence that prompts an emotional reaction against the defendant, causing the jury to decide the case on an improper basis. (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
The principal factor affecting the probative value of the evidence is the tendency of the evidence to demonstrate the existence of the fact for which it is admitted. (People v. Walker, supra, 139 Cal.App.4th at p. 806.) In this case, the evidence was admitted to explain why Donna did not scream when defendant was beating her, or call for help when she had the opportunity, and to show defendant was the perpetrator of the attacks. Evidence of his past abuse and her knowledge of his violent past, coupled with his threats to kill her if she tried to leave, were highly relevant to show that her fear of him made her react in a manner the jury may have found otherwise unusual.
The principal factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in convictions (motivating the jury to punish defendant for past acts) and whether the evidence is more inflammatory than the present offense. (People v. Walker, supra, 139 Cal.App.4th at p. 806.) In this case, Donna admitted she refused to have defendant arrested for the prior domestic abuse. However, the fact that she referenced his “priors” and his “criminal background” indicates he had convictions unrelated to the domestic abuse. Because no details were given about the prior incidents, other than that they were violent, the evidence was not more inflammatory than the present offense. The trial court did not abuse its discretion in admitting the evidence.
II
Limiting Instruction
Defendant argues the trial court erred in not giving, sua sponte, CALCRIM No. 375, that the evidence of defendant’s past conduct could not be used to show he has a bad character or was disposed to commit the instant crime. However, “in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.” (People v. Collie (1981) 30 Cal.3d 43, 64, fn. omitted.) The exception to this rule is the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (Ibid.) This case does not fall within the exception. The evidence of past conduct was a small part of the evidence against defendant, was not unduly prejudicial, and was substantially relevant to material issues.
Defendant argues his trial counsel rendered ineffective assistance when he failed to request a limiting instruction. We disagree.
To show ineffective assistance of counsel, defendant must demonstrate that the quality of his counsel’s representation was below an objective standard of reasonableness, and that but for the error, the result would have been different. (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) We look to see if the record contains any explanation of why trial counsel acted, or failed to act, in the manner challenged. If there is none, we must reject the claim of ineffective assistance unless counsel was asked for an explanation and failed to provide one, or unless there could be no satisfactory explanation. (Ibid.) We do not second guess reasonable tactical decisions. (Ibid.)
In this case, defense counsel may have believed that the request of a limiting instruction would call undue attention to the evidence. Such a decision was within the range of reasonable competence. (See People v. Freeman (1994) 8 Cal.4th 450, 495 [counsel not incompetent for failing to request a limiting instruction because he may not have wanted to emphasize the evidence].)
The trial court did not err in failing to give a limiting instruction sua sponte, and defendant’s constitutional rights to due process and to the effective assistance of counsel were not violated.
III
Ex Parte Jury Communications
During deliberations, the jury sent the court a note which read, “what does--abiding conviction (220 Pg 4)?” The trial court assumed the note was asking for a definition of abiding conviction in the reasonable doubt instruction. In response, the trial court, without notifying defendant or his counsel, typed and gave the jury a note telling them the definition was within instruction no. 220, the reasonable doubt instruction.
CALCRIM No. 220, as read to the jury stated: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be prejudiced against the defendant just because he has been arrested, charged with a crime or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent, and this presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”
Defendant argues he is entitled to assistance of counsel at all critical stages of the proceedings, including jury deliberations, and that the trial court’s communication with the jury without notifying him violated his constitutional and statutory right to counsel.
He also claims the trial court violated his right to counsel when he instructed the reporter to read back testimony without notifying counsel. We reject this claim as waived because the parties stipulated to this prior to deliberations.
Section 1138 provides that after the jurors begin deliberation, they must be conducted into court if they have a disagreement as to the testimony, or if they desire to be informed on any point of law arising in the case. When they are brought into court, the information must be given to them after notice to and in the presence of the prosecuting attorney and the defendant or his counsel.
The trial court failed to comply with these requirements of section 1138, and such failure was error. However, we conclude the defendant tacitly approved of the trial court’s action, and the error was not prejudicial.
The trial court informed both counsel of the ex parte communications with the jury after the jury rendered its verdict, but prior to sentencing. Defense counsel did not object or move for a mistrial upon notification of the ex parte communications. Such failure may be construed as a tacit approval, and approval of the trial court’s actions cures any possible error. (People v. House (1970) 12 Cal.App.3d 756, 765-766, disapproved on another point in People v. Beagle (1972) 6 Cal.3d 441, 451-452.)
In any event, there was no prejudice. “The standard of review in assessing the impact of an improper communication between the court and a deliberating jury is not clear.” (People v. Hawthorne (1992) 4 Cal.4th 43, 68, fn. 14.) Here, there was no prejudice even under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711], because the error was harmless beyond a reasonable doubt. The error was harmless because the instruction, and the “abiding conviction” language in particular, was correct, because the court was not required to give any further instruction, and because defendant has not shown what further instruction would have resulted in a different verdict.
The reasonable doubt instruction, and the abiding conviction language, was correct and adequate. The Supreme Court has rejected a challenge to the “abiding conviction” language used in CALJIC No. 2.90, the predecessor to CALCRIM No. 220. (People v. Cook (2006) 39 Cal.4th 566, 601; People v. Garelick (2008) 161 Cal.App.4th 1107, 1119.) Moreover, the United States Supreme Court gave the language its approval in Victor v. Nebraska (1994) 511 U.S. 1, 14-15 [127 L.Ed.2d 583, 596], where it stated, “[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government's burden of proof.” The Supreme Court further explained, “‘[t]he word “abiding” here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence’ . . . .” (Id. at p. 15 [p. 596], quoting Hopt v. Utah (1887) 120 U.S. 430, 439 [30 L.Ed. 708, 711].)
This sense of a “conviction” that follows from a “careful examination and comparison of the whole evidence” is precisely the definition found in CALCRIM No. 220, which instructs the jury that they must “compare and consider all of the evidence that was received throughout the entire trial.” The trial court was entirely correct in referring the jury to the language of the instruction. The reasonable doubt instruction given is taken from the language found in section 1096, which states: “Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’” Section 1096a states that the court may read section 1096 to the jury, “and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.”
“The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The trial court acted within its discretion in referring the jury back to the language of the instruction.
Defendant’s real complaint is that neither he nor his attorney were present to suggest some further instruction for the trial court to give. However, defendant does not propose any further instruction that he contends would have improved on the standard instruction. The fact that the trial court referred the jury to the instruction to define the challenged term without notifying counsel or the defendant indicates that the court was unwilling to deviate from the language of the standard instruction, and that the court’s response to the question would have been the same whether or not counsel had been present. Since the instruction given was correct and the trial court acted within its discretion in referring the jury to the standard instruction, there is no reasonable possibility that the failure to notify counsel contributed to the conviction.
IV
Cumulative Error
Defendant asserts cumulative error; however, we have determined there was only a single, harmless error. Therefore, his argument that the cumulative effect of individual error rises to the level of prejudice is meritless.
V
Sentencing
The trial court sentenced defendant to three 25-year-to-life terms. The term imposed for count 2 (assault by means of force likely to produce great bodily injury) runs concurrently, and the term for count 3 (spousal abuse) was stayed pursuant to section 654. Defendant argues the sentence for count 1 should have been stayed because the false imprisonment and assault were committed during a single course of conduct, and the false imprisonment was the means of accomplishing the assault. We agree that the sentence for count 1 should be stayed pursuant to section 654 because we conclude the assault was the means of accomplishing the false imprisonment.
“Penal Code section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]” (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.)
Donna testified that when she came home from the supermarket, defendant first began yelling at her because he thought she had gone off with another man. The yelling quickly escalated, and defendant began hitting Donna. He hit her, kicked her, and tossed her around the room, all the while accusing her of having betrayed him, and threatening to kill her if she ever left him. The beating went on for up to an hour. When it stopped, Donna got in the bathtub to try to stop the pain. He tried to drown her while she was in the tub. After Donna got out of the bathtub, defendant put a knife to her throat and told her he would kill her if she left with another man. Donna stated that the beatings stopped for a while after the incident with the knife, but that every once in a while, defendant would get angry again and start hitting her.
Defendant argues his restraint of Donna was committed with the objective of assaulting her, thus there was no independent intent to falsely imprison her. We agree that there was no independent intent to falsely imprison Donna.
Donna was asked about the threat to kill her. “Q. [W]as this he’d kill you if you left the motel room or he’d kill you if you left him, the marriage? [¶] A. Both, either.” Later she was asked. “Q. Did he tell you he would kill you [or] why or if you did something? [¶] A. He just told me -- he kept telling me that [if] I left with another man . . . he would kill me.”
The statements that he would kill her if she ever left “the marriage” or “left with another man” cannot reasonably be interpreted to mean that he was threatening to kill her if she left the room. It is true that Donna did not feel free to leave the room, but that fear stemmed from the beatings she received, not defendant’s threat to kill her if she “ever tried to leave” or “left with another man . . . .” In fact, after the beatings stopped the next morning, Donna left with defendant’s knowledge. Thus, defendant’s single objective was to inflict harm on Donna.
The People argue defendant initially assaulted Donna with the intent to punish her for leaving with another man, but after she got into the bathtub, the assaults were with the intent to prevent her from leaving or calling the police. The facts do not support any discernible difference in the motivation for the beatings from one time to the next. Defendant’s words, as relayed by Donna, were that he would kill her if she “ever tried to leave” or if she “left with another man[.]” Donna admitted she would have left the motel room, but for the fact that she was afraid of being killed or hurt. She said she did not feel that she could leave the motel room because of the assaults. The evidence does not, however, support an inference that defendant used force against her for the purpose of preventing her from leaving the room while she was being assaulted.
This case is unlike People v. Saffle (1992) 4 Cal.App.4th 434, cited by the People. There, the defendant sexually attacked the victim. When someone knocked on the door of the apartment in which the attack was occurring, the defendant stopped the attack, but would not let the victim answer the door. He also threatened to kill her and her children if she told anyone. (Id. at p. 437.) The court stated that after the sexual offenses were completed, the defendant’s objectives changed. “He was no longer interested in fulfilling a sexual objective; he was seeking to prevent [the victim] from reporting the incident.” (Id. at p. 440.) The court found that this further objective of dissuading the witness made the offenses divisible. (Ibid.)
Here, by contrast, the defendant did not exhibit an intent to prevent Donna from leaving or calling the police, separate and apart from the beatings. There was no point in time where the beatings stopped, and he continued to threaten her to prevent her from leaving the room. The beatings were inextricably intertwined with the threats to kill her if she left him for another man. They were provoked because he thought she had been with another man. The offenses being incidental to each other, defendant may not be separately punished.
When multiple punishments are imposed for an indivisible course of conduct that violates more than one statute, the appropriate procedure is to eliminate the effect of the judgment as to the offense with the lesser penalty. (People v. Landis (1996) 51 Cal.App.4th 1247, 1255.) Absent alternative sentencing under the three strikes law, as occurred in this case, the sentence for false imprisonment by violence or menace (count 1) is 16 months, two or three years (§§ 18, 237, subd. (a)), and the sentence for assault by means of force likely to produce great bodily injury (count 2) is two, three, or four years. (§ 245, subd. (a)(1).) We shall therefore stay the sentence on count 1, and make count 2 the primary offense.
DISPOSITION
The judgment is modified to stay, pursuant to section 654, the service of the sentence on count one, and to make count two the primary sentence. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect the modification, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., MORRISON, J.