Opinion
F050372
5-9-2007
THE PEOPLE, Plaintiff and Respondent, v. FABIAN FONG ACOSTA, Defendant and Appellant.
Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J. and Kane, J.
A jury convicted appellant Fabian Fong Acosta of felony child abuse (Pen. Code, § 273a, subd. (a); count 1), misdemeanor delaying, resisting or obstructing a peace officer (resisting arrest) (§ 148, subd. (a); count 2) and felony intimidation of a witness by force or threat of force or violence (§ 136.1, subd. (c)(1); count 3). The court suspended imposition of sentence, placed appellant on four years probation and made various orders, including that appellant pay $900 for the cost of the preparation of the probation officers report (RPO).
All statutory references are to the Penal Code.
We refer to this order as the RPO cost order.
On appeal, appellant contends (1) the evidence was insufficient to support his conviction of felony child abuse; (2) the court erred in failing to instruct the jury, sua sponte, on self-defense with respect to the charge of resisting arrest; and (3) the court erred in imposing the RPO cost order. We will modify the judgment to reduce the count 1 offense to a misdemeanor, vacate the RPO cost order and remand for further proceedings.
FACTS
Because the issues on appeal relate to the offenses charged in counts 1 and 2 only, our factual statement relates to those two offenses, and we forgo discussion of the count 3 offense.
Prosecution Case
On the evening of September 5, 2005 (September 5), Y.F. (hereafter Y.), then 17 years old, was at home with her mother and appellant, her father. At one point that evening, she left the living room and went to her bedroom because her parents were arguing.
Except as otherwise indicated, the "Prosecution Case" portion of the factual statement is taken from Y.s testimony.
While she was in her bedroom she heard "screaming" and "things being thrown on the ground," and her mother told her to call 911. She did so, and a short time later went back into the living room and told her mother the police were on their way.
At some point thereafter, Y.s mother was standing in the living room, holding her other daughter, Charlene, then age 2. Appellant wanted to hold Charlene, and he became angry when his wife refused to hand the child to him. Y., fearing for her sisters safety, asked to hold the child, but appellant told her to "get away." Y. "grabbed [Charlene], and . . . tried to force her out of [her mothers] arms, and that was when [appellant] swinged [sic] at [Y.] Appellant struck Y. approximately twice "[a]round [her] eyes and . . . cheek bone." When appellant struck Y. the second time, sheriffs deputies entered the house, grabbed him and "pulled him outside of the house."
Y. "remember[ed] feeling [appellants] fist on [her] face." Asked on direct examination what she "remember[ed] feeling when [appellant] punched [her]," Y. responded: "I was just mad. It hurt my feelings . . . ."
Stanislaus County Deputy Sheriff Joshua Humble testified to the following. He and two other deputies, David Vargas and Joshua Clayton, arrived at appellants house at approximately 8 p.m. on September 5. As they approached the house, Deputy Humble saw appellant, who was standing in the front doorway with his wife and Y., "hit [Y.] two to three times in the . . . head . . . ." At that point, Deputy Humble ran toward the front door, yelling that he was a deputy sheriff and ordering appellant to "stop." Appellant, while holding onto the arm of one of the females, turned to face the deputies. At that point, Deputy Humble grabbed appellants arm and began pulling him away, telling him to "let go of the female," but appellant "braced himself into the doorway . . . ." Deputy Humble then "reached around behind [appellants] head," and the three deputies "were able to pull him out [of] the doorway out into the [front yard]." Deputy Humble told appellant to get on the ground, but appellant "continued to swing his arms around." The deputies were able to get appellant on the ground, but he "continued to pull his arms away[,] swinging in different directions." Deputy Humble "had to punch [appellant] in[] the stomach twice," which caused appellant to "release[]" his "breath," at which point the deputies were able to handcuff appellant and "stop the fight."
Deputy Vargas testified to the following. He spoke to Y. after appellant had been taken into custody. She was crying as he spoke to her, and her eyes were "red and swollen." The deputy was unable to determine whether the redness and swelling were the result of her crying or "whether it was caused [by] her injuries." He observed no injuries to the victims cheeks or mouth. The victim "didnt have any blood come out of her lips or anything like that," and the deputy "didnt see any teeth missing or anything like that." The victim did not complain of pain, and when the deputy asked her if she wanted medical treatment, she declined.
Deputy Vargas further testified that appellant stated that at the time he hit Y. he was "very angry" and "out of control."
Defense Case
Appellant testified that on September 5, he was in the house, holding his two-year old daughter in his arms, when Y. tried to take the child from him. With an open hand, appellant "just pushed" Y. to prevent her from taking his younger daughter. In doing so, he touched Y. twice, on the side of her face. At that point, the sheriffs deputies arrived.
The "Defense Case" portion of the factual statement is taken from appellants testimony.
Appellant was facing away from the door when the deputies opened the door and "grabbed [appellant] from behind." "It was from the darkness," and appellant was "surprised" and "spooked." He "released [his daughter to his] wife." Appellant did not hear the deputies say they were from the sheriffs department until "they had their hand [sic] on [him]."
Appellant did not hang onto the door frame because "they grabbed me from the hand," and he "didnt ever have a hand to hold on with." One of the deputies held him and two others "pull[ed] on" him. Appellant "never resisted."
Appellant further testified: "And they put me on the outside, and one would pull me down, and another, others would pull me up at the same time. I was being beat. They were messing with my body. I wasnt resisting. . . . One of them hit me in the knees, and one of them hit me in the stomach, and they opened this part in here, the ear. Its still swollen. He put his knee on very — with a lot of strength. . . . [¶] [A]fter they threw me in the patrol car, others got out, and they were giving themselves high-five, laughing about me."
While three deputies were beating appellant, two others acted as look-outs.
DISCUSSION
Sufficiency of the Evidence — Felony Child Abuse
As indicated above, appellant stands convicted of felony child abuse against Y., in violation of section 273a, subdivision (a). That statute provides, in relevant part: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, . . . inflicts [on a child] unjustifiable physical pain or mental suffering . . . shall be punished by imprisonment . . . ." (Italics added.) Thus, "[f]or a defendant to be guilty of violating section 273a, subdivision (a), his conduct must be willful and it must be committed under circumstances `likely to produce great bodily harm or death." (People v. Cortes (1999) 71 Cal.App.4th 62, 80.) Appellant contends the evidence was insufficient to support a finding that he struck Y. with force "likely to produce great bodily harm," and therefore his conviction on count 1 cannot stand. (§ 273, subd. (a).) We agree.
In addressing a challenge to the sufficiency of the evidence supporting a conviction, the appellate court must determine "`whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, "[the appellate court] must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
"By definition, `substantial evidence requires evidence and not mere speculation. In any given case, one `may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence."" (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, quoting People v. Morris (1988) 46 Cal.3d 1, 21.) "Evidence which merely raises a strong suspicion of the defendants guilt is not sufficient to support a conviction." (People v. Redmond (1969) 71 Cal.2d 745, 755.)
"`Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury. [Citation.] However, there is no requirement that the victim suffer great bodily harm." (People v. Cortes, supra, 71 Cal.App.4th at p. 80.) "`The issue is not whether serious injury was caused, but whether the force used was such that it would be likely to cause it." (People v. Duke (1985) 174 Cal.App.3d 296, 302.) "That the use of hands or fists alone may support a conviction of assault `by means of force likely to produce great bodily injury is well established [citations], . . . [Fn. omitted.]" (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) A single blow to the face may, under all of the circumstances, constitute assault by means of force likely to produce great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.) Whether a closed-fist striking of another person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. (People v. Kinman (1955) 134 Cal.App.2d 419, 422.)
The terms "great bodily harm," as used in section 273a, subdivision (a), and "great bodily injury" for purposes of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)) are essentially interchangeable. (Cf. People v. Burroughs (1984) 35 Cal.3d 824, 831 ["[t]here is no indication the Legislature intended to ascribe a different meaning to `great bodily harm, as that term is used in [Business and Professions Code] section 2053, than is signified by `great bodily injury or, for that matter, `serious bodily injury,"].)
The People, noting that Y. testified appellant struck her with a closed fist, assert that "the mere act of punching someone in the face with a closed fist two or three times necessarily places [that person] in a position of likely sustaining great bodily injury." But this argument ignores the principle that all circumstances, including the force of impact, must be considered. Here, as the parties do not dispute, the record supports the conclusion that appellant struck Y. in the face two or three times with a closed fist. However, the evidence also showed the following: when asked what she felt when appellant punched her, Y. testified she was angry and her feelings were hurt, and when Y. spoke to the investigating deputy sheriff, she did not complain of pain, she declined medical treatment, the deputy observed no injuries and he could not determine whether the redness and swelling he observed in Y.s face were the result of the blows she received or her crying. There was no evidence Y. fell, staggered or, indeed, was affected in any physical way when appellant struck her. (Compare In re Nirran W., supra, 207 Cal.App.3d 1157 [force likely to produce great bodily injury found where assailant struck the victim with enough force to knock her to the ground].) Here, although there was evidence appellant struck the victim, the record is virtually devoid of evidence as to the force with which he struck her. The People note that appellant admitted being very angry at the time he struck Y., but this factor notwithstanding, on this record the inference that appellants assault was likely to produce great bodily harm is purely speculative.
Misdemeanor child abuse under subdivision (b) of section 273a is a necessarily lesser included offense of felony child abuse. Thus, rather than reverse the judgment on count 1, we will modify the judgment to reflect appellant committed the necessarily lesser included offense of misdemeanor child abuse in violation of section 273a, subdivision (b), and remand for resentencing. (§ 1260; cf. People v. Beasley (2003) 105 Cal.App.4th 1078, 1088 [modifying judgment to reflect the defendant convicted of lesser included offense of misdemeanor simple assault after finding conviction for assault with a deadly weapon not supported by substantial evidence].)
Section 273a, subdivision (b) provides: "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor."
Claimed Instructional Error
Appellants claims of instructional error relate only to the charge of resisting arrest. He contends: "The trial courts failure to sua sponte instruct the jury on appellants right to self defense deprived appellant of his right to due process under the Fourteenth Amendment to the United States Constitution and deprived appellant of a fair trial to the extent the jury was not told that excessive force was a defense to the charge [of resisting arrest]." Appellant bases this claim on People v. White (1980) 101 Cal.App.3d 161 (White) and People v. Olguin (1981) 119 Cal.App.3d 39 (Olguin).
Although framed as a single argument, it appears that appellants claim of instructional error with respect to count 2 consists of two separate claims: (1) the court erroneously failed to instruct on self-defense, and (2) the court erroneously failed to instruct the jury that appellant could not be guilty of resisting arrest if the deputies, in effecting that arrest, used excessive force.
We first address the claim that the court erred in not giving a self-defense instruction. "`It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case." (People v. Sedeno (1974) 10 Cal.3d 703, 715, disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149 and People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) "The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, . . ., and on the relationship of these defenses to the elements of the charged offense." (People v. Sedeno, supra, 10 Cal.3d at p. 716.) However, in the case of defenses, "a sua sponte instructional duty arises `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." (People v. Breverman, supra, 19 Cal.4th at p. 157.)
Here, appellant was not relying on self-defense. Rather, the theory of his defense to the charge of resisting arrest was that he offered no resistance. Moreover, a self-defense instruction—which presupposes appellant used force against the deputies—would have been inconsistent with his theory of the case. Therefore the court had no obligation to instruct on self-defense.
In closing argument, defense counsel asserted: "With regard to . . . the resisting arrest charge, my client testified, he told you that he was taken out of the house by force. He told you that he was being man handled by the police, that he was being hit, that he didnt resist, and so his testimony tends to show that he would not be guilty of resisting if he was just, if he was basically just taken by force by the officers, thrown onto the lawn. Even one of the officers admitted that he punched him in the stomach twice, and obviously, you know, theres an incentive for these officers to get a conviction for resisting arrest here because they may be subject to civil liability if they punch some guy in the stomach during an arrest and it turns out that that wasnt justified. So he testified that he was not resisting. Hes not guilty of [resisting arrest]."
We turn now to the second component of appellants claim of instructional error. The principles underlying this argument are as follows: an element of resisting arrest is that the arresting officer act in the "discharge" of a "duty" (§ 148, subd. (a)); an officer who effects an unlawful arrest cannot be said to be engaged in the performance of his or her "duty"; an arrest accomplished by means of excessive force is unlawful; and therefore "the use of excessive force renders it impossible for an arrestee to violate section 148." (Olguin, supra, 119 Cal.App.3d at p. 44; accord, White, supra, 101 Cal.App.3d at pp. 166-167.)
In White the defendant was charged with several offenses, including resisting arrest. The defendant argued, inter alia, that the instructions to the jury were "incomplete" because they failed to explain the defendant could not be found guilty of resisting arrest if it found the arrest unlawful due to excessive force. The court stated, "in the present case, it became essential for the jury to be told that if they found the arrest was made with excessive force, the arrest was unlawful and they should find the defendant not guilty of those charges which required the officer to be lawfully engaged in the performance of his duties (§§ 245, subd. (b), 243 and 148.)" (White, supra, 101 Cal.App.3d at p. 167.)
In Olguin the jury convicted the defendant, who had been charged with assault on a police officer, of the lesser included offense of resisting arrest. On appeal, the defendant argued that the court erred prejudicially because "nowhere in the instructions is the concept of the lawfulness of an arrest related to the use of excessive force or other improper officer conduct." (Olguin, supra, 119 Cal.App.3d at p. 44.) The appellate court, relying chiefly on White, agreed: "The evidence in the case would have supported a finding that the officers used excessive force and thus that they were not acting within the scope of their duties. The jury should have been so instructed." (Id. at p. 46.)
Appellant argues reversal is required because "[a]s in White and Olguin, in the present case the jury was not instructed on the effect it could give to appellants testimony concerning the force used by sheriffs deputies at the time of his arrest." We disagree.
We are guided by People v. San Nicolas (2004) 34 Cal.4th 614 and People v. Saille (1991) 54 Cal.3d 1103. In San Nicolas, a murder prosecution, the defendant argued that the trial court had a sua sponte duty to instruct the jury that a homicide committed "due to voluntary intoxication" constitutes involuntary manslaughter rather than murder. (People v. San Nicolas, supra, 34 Cal.4th at p. 669.) The Supreme Court rejected this argument: "Defendant nonetheless claims that the trial judge has a sua sponte duty to give correct instructions on the defense theory of the case. Defendant is correct that the trial judge has a duty to instruct as to defenses `"that the defendant is relying on . . ., 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.] Defendant is incorrect that voluntary intoxication constitutes a defense. Instead, voluntary intoxication `is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt. (People v. Saille, supra, 54 Cal.3d at p. 1120 . . .) As such, the burden falls on the defendant to request a `pinpoint instruction. (Ibid.) `[S]uch a pinpoint instruction does not involve a "general principle of law" as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court. (Ibid.) [¶] . . . Saille clarified that the defense of voluntary intoxication was an attempt to raise a reasonable doubt as to a specific element of the crime and did not trigger a judges sua sponte duty to instruct." (Id. at pp. 669-670.) "`[W]hen a defendant presents evidence to attempt to negate or rebut the prosecutions proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a "pinpoint" instruction relating such evidence to the elements of the offense and to the jurys duty to acquit if the evidence produces a reasonable doubt, such "pinpoint" instructions are not required to be given sua sponte and must be given only upon request." (People v. Saille, supra, 54 Cal.3d at p. 1117.)
The claim that the deputies used excessive force is not a "`special defense invoking sua sponte instructional duties." (People v. Saille, supra, 54 Cal.3d at p. 1117.) Rather, it is an attempt to raise a reasonable doubt as to an element of resisting arrest, viz., that the deputies acted lawfully in making the arrest. Therefore, the court had no sua sponte duty to instruct the jurors that if they found the deputies acted with excessive force they must find the arrest unlawful and appellant not guilty of resisting arrest. Neither White nor Olguin considered whether the error complained of was the failure to give a pinpoint instruction. Therefore those cases are inapposite. (People v. Barragan (2004) 32 Cal.4th 236, 243 ["`cases are not authority for propositions not considered"].)
RPO Cost Order
Appellant contends the RPO cost order cannot stand because the court failed to hold a hearing on appellants ability to pay such costs. The People concede the point, and we agree.
Under section 1203.1b, the court "shall order" any defendant who is granted probation "to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay," inter alia, "all or a portion of the reasonable cost of . . . conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203 . . . ." (§ 1203.1b, subd. (a).) Section 1203.1b, subdivision (a) requires that the defendant be advised of his right to a court hearing on the ability to pay, including the right to be represented by counsel, and that any waiver of that right must be knowing and intelligent. Absent such a waiver, the court must conduct an evidentiary hearing on the defendants ability to pay. (§ 1203.1b, subd. (b).)
Here, as the parties agree, the court did not conduct a hearing on the issue of appellants ability to pay under section 1203.1b and there is no indication appellant was advised of his right to a hearing or that he knowingly and intelligently waived that right. Nor is there any indication the court ordered appellant to appear before the probation officer or his or her representative as required by section 1203.1b. Accordingly, the matter must be remanded to allow the trial court to comply with section 1203.1b. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1067-1068) We note that any order for payment of probation-related costs under section 1203.1b may not be imposed as a condition of probation but rather as a separate order. (Id. at p. 1068.)
DISPOSITION
The judgment is modified to reflect a conviction, on count 1, of misdemeanor child abuse in violation of section 273a, subdivision (b). The RPO cost order is vacated. The case is remanded to the trial court for redetermination of probation-related costs pursuant to section 1203.1b, as discussed in this opinion, and for resentencing. In all other respects the judgment is affirmed.