Opinion
E065659
10-26-2017
THE PEOPLE, Plaintiff and Respondent, v. EYNER ARMANDO ALAMILLA, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1400233) OPINION APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant and appellant Eyner Armando Alamilla was convicted of unlawful infliction of injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), but acquitted of false imprisonment. (Pen. Code, § 236.) The trial court sentenced him to state prison for three years, but suspended execution of the sentence in favor of formal probation for a period of 36 months. On appeal, defendant contends the trial court erred in failing to give a unanimity instruction. We disagree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Jane Doe dated for three to four years and lived together intermittently. Doe testified that in November 2013, she moved in with defendant and his children. On the morning of January 25, 2014, while the two were in bed, Doe told him that he needed to make sure that his children took care of the dogs. Defendant got upset and angry; he told her to leave him alone because he was not having a good morning. When Doe continued to pursue the topic, defendant hit her in the face. She started crying and asked for help. Defendant hit her again on her lips. He told her to stop crying because the kids were going to hear. She was screaming and tried to leave the bedroom, but defendant would not let her leave and tried to force her to stay on the bed.
Doe testified that defendant took her into the bathroom and closed the door. He threatened to hit her with the lid of the toilet tank if she did not quiet down. He also tried to choke her with the strap of a satchel that she was wearing over her shoulder. He threw the strap over the shower stall rail and pulled on it. She was still crying out loud, so defendant picked up the tank lid again and threatened to bring it down on her head if she did not stop making noise. Defendant brought Doe back into the bedroom and told her that he was sorry and he loved her. Doe eventually fell asleep.
According to Doe, on January 26, 2014, defendant continued to refuse to let her leave the bedroom. Doe begged defendant to let her get some air because she needed to study for a phlebotomy test. Defendant was hesitant but agreed. When Doe opened the bedroom door, she ran down the hallway and out the front door. When she was running, she felt pain in her leg and her heel; defendant had thrown a "little iron chair" at her. Doe ran to a neighbor's house, and the neighbor called 911.
Detective Larry Essex responded to the call. He testified that he observed Doe with a black eye and a bruise on her upper lip. She was frantic and scared. The detective noticed other bruising on her body and she told him that she had been kicked as well. She did not tell him that she had been hit with a chair, that defendant had tried to choke her with her satchel strap, or that he had threatened to hit her with the toilet's tank lid. However, Detective Essex saw a chair lying on its side or back in the sloped area of defendant's driveway. Doe told the detective that defendant's abuse happened "for two days."
Defendant testified that he and Doe had stopped living together prior to the events giving rise to this case. On or about Thursday, January 23, 2014, defendant picked up Doe at a senior center. After she took a shower, he noticed that she had bruises on her legs and hip area, as well as her chin. When he asked about them, she got angry and said it was none of his business.
According to defendant, on January 26, 2014, he was in the bedroom when he heard Doe arguing with his children about the puppies and the house being a mess. He went into the living room and asked Doe if they needed to talk, they could do it in the bedroom. They went into the bedroom, and defendant told her that if she wanted to leave, she could go. Doe then "took off," running and yelling. Defendant did not follow her; instead, he went to the store. Upon returning, he was told that law enforcement wanted to speak with him. He denied slapping or kicking Doe, trying to choke her, or threatening her with the toilet tank lid.
Defendant's son testified that on January 26, 2014, Doe was arguing with his sisters. Defendant and Doe went into the bedroom. Later, Doe ran out, crying that defendant had hit her. Defendant's son admitted that he did not see any bruising on Doe's face before she went into the bedroom with defendant, but saw the injuries later that day.
II. DISCUSSION
Defendant contends that the trial court erred by failing to give a unanimity instruction because there was evidence suggesting multiple acts that could constitute infliction of injury on Doe. We disagree.
A. Further Background Information.
According to the information, "on or about January 24, 2014," defendant "willfully and unlawfully inflict[ed] a corporal injury resulting in a traumatic condition upon Jane Doe." During trial, Doe testified that on January 25, 2014, defendant hit her in the face two times, and on January 26, 2014, he threw a chair at her leg. The original verdict form stated that the offenses occurred on or about January 24, 2014. However, the verdict form was amended to indicate that the offenses occurred "between January 24, 2014 and January 26, 2014," based on the prosecutor's mistaken belief that the information contained such language. The jury instructions included the following: "It is alleged that the crimes occurred on or between January 24 and January 26, 2014. The People are not required to prove that the crimes took place exactly on those days but only that they happened reasonably close to those dates." (CALCRIM No. 207.)
The information further alleged that "on or about January 24, 2014 - January 26, 2014," defendant "willfully and unlawfully, by violence, menace, fraud, and deceit, violate[d] the personal liberty of Jane Doe."
In contrast to Doe's testimony that she was slapped on the face on January 24, 2014, defendant's son testified that he noticed the bruising on Doe's face on January 26, 2014, after she had requested that they talk in the bedroom.
In opening statement and closing argument, the prosecutor stated that he was relying on the slaps to Doe's face to support the charge. In opening statement, he said, "Two different charges in this case over a two-day period resulting from two harsh slaps to Jane Doe. Two large black and blue marks on her face." The prosecutor did not mention any of defendant's other acts that could constitute injury to Doe. During closing, the prosecutor focused on the slaps to Doe's face. He began: "Two days later from being slapped in the face twice with such great force that her face turned purple, she was able to escape to her neighbor's home." When discussing the injury element of the crime, the prosecutor stated:
"The injury, we all saw the photo; there's no getting around that. Her eye, her lip, her arms are all consistent with one thing, what she had to say, how it happened.
"Involved injury resulted in traumatic condition. Traumatic condition is defined in the instructions that the Judge gives—gave. I'd like to go into it.
"Natural and probable consequences of the injury. We heard Jane Doe say—Miss (Jane Doe) say that she was slapped. Well, the natural and probable consequence of being slapped when you have a ring on is this. Bruising to the face. A steel ring or a ring on the finger against the person's face, we can use our common sense to see what the result would be.
"Injury was a direct and substantial factor in causing the condition. Yes. It goes back to a picture. And when that happened, without the injury, if the defendant did not use his intentional and directed force to hit her in the face, this would have never happened.
"We can see the purple. We can see where it affected her in the lip, in the eye. We can see the circularness of the bruise. We can see how it disspells [sic] outward, dark purple, the same with the eye, in the crevice of the eye, in the outer rim of the eye, around the eye, all on one side of the face.
"She testified, after l[y]ing in bed, and she's to the defendant's right, he uses the right hand, slaps twice. That would hit her in the left side of the face. That's where the injuries are, on the left side of the face.
"And that's really just Count 1 right there."
Later, the prosecutor mentioned defendant throwing a chair at Doe, and the detective seeing the chair in the driveway, in order to "corroborate" Doe's claim of what had happened.
B. Applicable Legal Principles.
"When a defendant is charged with a single offense, but there is proof of several acts, any one of which could support a conviction, either the prosecution must select the specific act relied upon to prove the charge, or the jury must be instructed that all the jurors must agree that the defendant committed the same act or acts. [Citation.] When the prosecutor does not make an election, the trial court has a sua sponte duty to instruct the jury on unanimity. [Citation.]" (People v. Mayer (2003) 108 Cal.App.4th 403, 418 (Mayer).)
C. Analysis.
Here, according to defendant, the evidence suggested "many permutations of what acts could be found on what approximate dates," in which he may have committed the offense of injury on a cohabitant: by slapping Doe's face twice, by kicking her, by bruising her arms, by choking her in the bathroom, or by throwing a chair and hitting her as she fled. He argues that the lack of a unanimity instruction (CALCRIM No. 3500), coupled with the wording of the verdict form and CALCRIM No. 207, requires the reversal of his conviction. We find that no unanimity instruction was necessary in this case, because the jury was clearly apprised of the prosecutor's selection of slapping Doe's face twice as the conduct amounting to the crime charged. (See Mayer, supra, 108 Cal.App.4th at pp. 418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 (Hawkins).)
At the start of the trial, the information was read to the jury. In his opening statement, the prosecutor focused solely on the slaps to Doe's face to support the charge: "Two different charges in this case over a two-day period resulting from two harsh slaps to Jane Doe. Two large black and blue marks on her face."
Similarly, during closing argument, the prosecutor focused only on the facial injuries that Doe suffered as a result of the slaps to her face. For example, included in the opening remarks of his closing argument were, "Two days later from being slapped in the face twice with such great force that her face turned purple, she was able to escape to her neighbor's house." In his argument, the prosecutor explicitly identified the two slaps to Doe's face and stated, "And that's really just Count 1 [(infliction of injury on a cohabitant)] right there." His reference to defendant having thrown a chair (which was later found by the detective) at Doe was to "corroborate" Doe's claim of what she had endured for two days. In his closing, defense counsel argued that Doe was not truthful in her accusations and that defendant did not assault her or keep her against her will.
The verdict form reflects that the jury convicted defendant of inflicting injury on a cohabitant, or a person who has or previously had a dating relationship with defendant, resulting in a traumatic condition, "occurring between January 24, 2014 and January 26, 2014, as charged under Count 1 of the information." As previously noted, count 1 of the information alleged that "on or about January 24, 2014," defendant "willfully and unlawfully inflict[ed] a corporal injury resulting in a traumatic condition upon Jane Doe . . . ."
The information, the prosecutor's opening statement, and his closing argument demonstrate that this case was presented to the jury pursuant to a single theory: that defendant inflicted injury on Doe's face when he slapped her two times with his hand. (See Mayer, supra, 108 Cal.App.4th at p. 418 [where jury was told, by way of instructions, verdict forms, and prosecutor's argument, which of two possible acts on two different dates prosecution was relying on to support perjury charge, "prosecutor's statements and arguments were an election for jury unanimity purposes"]; Hawkins, supra, 98 Cal.App.4th at p. 1455 ["This was not a case where the prosecutor asked the jurors to select from among several discrete acts by defendant in order to convict him of [the crime charged]. . . . Because the prosecutor's opening argument elected what conduct by defendant amounted to the crime charged, we conclude that no unanimity instruction was required."].) Because it is plain that the prosecutor elected only the two slaps to Doe's face in proof of the charge of injury on a cohabitant, we conclude that the trial court did not err by failing to give a unanimity instruction.
Defendant does not argue that a unanimity instruction was required to ensure that the jury unanimously agreed on whether one or both slaps occurred. Given the fact that he offered the same defense (he did not do it) to both acts constituting the charged offense, no unanimity instruction was necessary. (People v. Jennings (2010) 50 Cal.4th 616, 679 ["no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime"].) --------
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.