Opinion
E051600 Super.Ct.No. RIF153641
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE BALLTEZEGAR, JR., Defendant and Appellant.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
OPINION
APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth, Judge. Affirmed.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Clarence Balltezegar, Jr., of inflicting corporal injury on his spouse, having previously been convicted of the same offense (Pen. Code, § 273.5). In bifurcated proceedings, defendant admitted having suffered a prior conviction for which he served a prison term. (§ 667.5, subd. (b).) He was sentenced to prison for five years and appeals, claiming the jury was improperly instructed. We reject his contention and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
Defendant and the victim had been married since 2003. On the morning of November 5, 2009, the victim took medication, which caused her to sleep the rest of the day until defendant came home in the late afternoon and woke her up. The medication caused her to be groggy even after she awoke. According to the responding officer who interviewed her shortly after the crime, she also had the odor of alcohol on her breath. She told this officer and testified at trial that defendant beat her, which will be described in greater detail below. At the time of trial, she claimed to be unable to remember calling the police and making many of the statements she made to the afore-mentioned officer. She testified that she loved the defendant, it was difficult for her to see him in jail and to testify against him, she did not want to see him charged in this case and did not want him to go to prison, adding, "I don't even know what he did." Her testimony was riddled with non-responsive answers, most of which were clearly aimed at minimizing defendant's actions or claiming she did not recall what had happened or what she had told the police had happened. At one point, the prosecutor became so frustrated with her that the trial court had to admonish him to stop showing his anger towards her in the presence of the jury.
ISSUE AND DISCUSSION
Despite the foregoing, the victim testified that on November 5, 2009, after she saw that the "really intoxicated" defendant had broken the front door to their apartment open because he left the key she had given him for it inside the apartment and she suspected that he had taken the rent money to buy alcohol, she went into the living room, where he was, she yelled at him and they argued. She eventually pushed him out the door. When asked if defendant did anything to the victim before she pushed him out the door, she testified that she and defendant "were wrestling . . . . Things got tossed over. Furniture got knocked over." Although she initially testified that she did not think that defendant injured her during this "wrestling," she later said that she probably told the responding officer that defendant smashed her in the face with his hand and what she told him was the truth. She testified that defendant pulled her hair and hit her with his fist. She also said, "I was trying to push him out the door, but when I put my hand on him, he was pushing me." She later reiterated that she did not push him out the door immediately, but only after they argued and things were thrown about. She told the responding officer, during a taped interview, that defendant "came in and started beating . . . , smashed me in the . . . face . . . [¶] . . . [¶] [with h]is hand . . . ." She said that what happened first was that defendant hit her. She added that he hit her with a fist, smashed her around, smashed her head and ripped out her hair. The officer observed injuries on the victim's head, face and legs and photos of those injuries were shown to the jury. The officer also observed that the victim was hysterical and fearful. The victim testified that she was afraid of defendant that night, adding, "when . . . he's really that intoxicated, I usually end up getting hurt." When asked if she inflicted any physical injury on the defendant, she responded, "No. I'm too little to be putting any pain on him, but . . . I was trying to get him out the door. [¶] . . . [¶] He's a big person, and there's a thing in my arm which I can't really get physical with my left hand . . . ." There was no evidence introduced that defendant had been injured in any way. The victim testified that after defendant went outside, she called her brother to come over and get the defendant and, either before or after this, she went out on the porch where defendant was calling her names in front of the neighbor children. She did not testify to any physical contact between herself and defendant while they were on the porch. She said that defendant left and did not return to the apartment. Therefore, the only time the victim could have been injured was when she and defendant were wrestling, which she said occurred before she pushed him out the door. The victim also testified that they were wrestling by pushing each other around, but she did not specify, at that point in her testimony, who started the pushing or whether she pushed him in response to something he did to her. When asked how it was that she was wrestling, she responded, "I was trying to push him out the door." In response to questions whether she told the responding officer that defendant hit her in the face, she said that they were fighting but, again, at this juncture, she did not say who started it. The same was true when she was asked if she told the responding officer that she had a bump on her head and she non-responsively stated that they were hitting each other and when she repeated that they were "kind of pushing each other" and "pushing around the apartment."
The responding officer testified that shortly after the crime, defendant exhibited the signs of being intoxicated.
Defendant obviously misinterprets this testimony by saying that as a result of it, the victim "accepted responsibility for being the one who gave the first push[.]" Clearly, what the victim said was that when she first pushed defendant, he was already pushing her.
It is entirely possible that this was stricken from the record. The following occurred at trial regarding it,
"Q [THE PROSECUTOR]: Okay. Did you tell the officer that you have a bump on your head?
"A I don't remember. Probably did. We were hitting each other.
"Q [THE PROSECUTOR]: Okay. All I'm asking is if you told the officer that.
"A I don't remember. If I did have injuries, I probably did tell him. I don't remember.
"[DEFENSE COUNSEL]: I'm going to object to this last portion as nonresponsive. Move to strike.
"THE COURT: Sustained. Stricken.
"Q [THE PROSECUTOR]: Did you tell the officer that he hit you with a fist?
"A Probably. I don't really remember. We were hitting each other.
"Q [THE PROSECUTOR]: What I'm asking you . . .
"A Usually hands and fists.
"[DEFENSE COUNSEL]: Objection. Nonresponsive.
"[THE PROSECUTOR]: Objection. Nonresonsive.
"THE COURT: Sustained to both. "Probably" remains in. "I don't remember" remains in. Anything after that point is stricken."
The victim testified that in 2006, defendant had pushed her into a brick wall, which split her head open, requiring stitches, and knocked her unconscious. She told the police that defendant had stuck her, which was the truth. On another occasion in 2006, defendant injured her face. Pictures of her injuries were shown to the jury. In 2004, defendant pushed her up against a wall, causing her to hit her head, which resulted in a bump. The victim told the responding officer that defendant "always beats [her]" and "[always] hit[s her] with a fist." She said she had a bump on her head from defendant hurting her two weeks prior and another injury from the day before. She said defendant kicked her. She said that on November 5, defendant grabbed a knife and threatened to kill her. The victim testified that defendant was taller and weighed more than she did. The victim told the responding officer that she was five feet, two inches tall and weighed 125 pounds. Although, unlike the jury, we do not have the advantage of seeing defendant in the flesh, the probation report compensates for it by telling us that he was six feet tall and weighed 180 pounds at the time of trial. Defendant was attending domestic violence classes at the time of this crime. A defense witness testified that the victim had told her that defendant was a violent alcoholic.
Defendant ignores the foregoing and claims that the victim testified that, on November 5, 2009, she pushed him towards the door before they began "wrestling,"therefore he did not "initiate the use of force," by misreading the record and relying on portions of her testimony in which she did not expressly state the order in which things occurred, unlike the above cited testimony. Based on this, defendant claims first that the trial court erred in failing to instruct the jury, sua sponte, on mutual combat. We review all claims of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
The fallacy of defendant's chronology of events becomes apparent in his reply brief when he changes his assertion that the victim pushed him towards the door before they began wrestling to the assertion that after she yelled at defendant for breaking the door and taking the rent money, according to her testimony, defendant "'had an attitude . . . [s]o I pushed him out the door and made him leave.' [Citation.] It was only then that things got physical between them. [Defendant] pushed back and the two began 'wrestling' around the room." If, however, the victim pushed defendant out the door and made him leave, then he pushed her back and they began to wrestle, he would not have been in the living room to push her back and the two to wrestle.
Although defendant cites Reporter's Transcript pages 36 and 109 in support of his assertion that the victim testified that she pushed defendant towards the front door (before any further contact occurred between them), she did not so testify on those or any other pages. On Reporter's Transcript page 110, she testified that she was pushing him out the door, but "[h]e didn't go right outdoors right then[,]" however this was stricken by the trial court. Immediately thereafter, the victim testified that she did not push defendant out the door as soon as he went into the living room (she probably meant as soon as she went into the living room), but "[t]here was a lot of arguing and stuff . . . and then . . . I finally pushed him out the door."
It was the trial court that first broached the subject of an instruction on mutual combat. Defense counsel had not included it in her list of requested instructions. In response to the trial court's question whether there was a request for the instruction, defense counsel said that it was one of the instructions she was originally thinking about, but she thought the instruction on self defense was better. Therefore, defendant's argument in regard to this instruction must be that the trial court had a sua sponte duty to give it.
The standard instruction on mutual combat provides, in pertinent part, "A person who engages in mutual combat . . . has a right to self-defense only if: [¶] [h]e . . . actually and in good faith tries to stop fighting; AND . . . [¶] [h]e . . . 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 [¶] . . . [h]e . . . gives [his] opponent a chance to stop fighting. [¶] If a person meets these requirements, [he] has a right to self-defense if the opponent continues to fight. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim of self defense arose." (Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3471) Not only does the evidence adduced at trial not support a finding that defendant and the victim engaged in mutual combat, more importantly, it does not support a finding that defendant actually tried to stop fighting or that he conveyed that he wanted to stop fighting to the victim and he did stop fighting or that he gave the victim a chance to stop fighting. There being no substantial evidence to support any of these findings, there was no sua sponte duty on the part of the trial court to give this instruction. (See People v. Gutierrez (2009) 45 Cal.4th 789, 824.)
No wonder, then, that defense counsel at trial not only did not request this instruction, but specifically told the trial court that the self-defense instruction was "better" than this instruction. (See fn. seven, ante, p. 7.)
Defendant did request CALCRIM No. 3470, which provides, in pertinent part, "[D]efendant is not guilty of [inflicting corporal injury on a spouse] if [he] used force against the other person in lawful . . . self-defense . . . . The defendant acted in lawful . . . self-defense . . . if: [¶] . . . The defendant reasonably believed that [he]. . . was in imminent danger of suffering bodily injury . . . or was in imminent danger of being touched unlawfully . . . ; [¶] . . . The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] . . . The defendant used no more force than was reasonably necessary to defend against that danger. [¶] . . . [D]efendant must have believed that there was imminent danger of violence to . . . himself . . . . Defendant's belief must have been reasonable and [he] must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful . . . self-defense . . . ." The trial court refused to give this instruction on the basis that because defendant had not testified (and no out of court statements of his were introduced into evidence), there was no evidence that he reasonably believed that he was in imminent danger of suffering bodily injury or that he reasonably believed that the immediate use of force was necessary to defend against that danger. Defendant here correctly points out that the fact that a defendant does not testify does not necessarily mean that there is insufficient evidence of his state of mind to justify the giving of an instruction so long as sufficient evidence adduced at trial supports it. (People v. DeLeon (1992) 10 Cal.App.4th 815, 824.) However, there was no such evidence presented here because the evidence that was presented did not create a reasonable inference that defendant believed he was in imminent danger of violence by the victim and that his use of force on her was necessary to defend against that danger and that he used no more force than was so necessary.
Defendant ignores this portion of the instruction in arguing that all that was necessary was his fear that the victim would unlawfully touch him.
See footnote 9, ante, page nine.
--------
Defendant's reliance on two federal court decisions holding that a jury instruction on a defense must be given if defendant is relying on that defense and some evidence supports it, even though that evidence is weak, insufficient, inconsistent or of doubtful credibility is simply not the law in California, as defendant's own statement that such an instruction must be supported by substantial evidence proves. Indeed, in People v. Flannel (1979) 25 Cal.3d 668, 684 footnote 12, the California Supreme Court declared, "Many cases cite, often without elaboration, language in [People v. ]Carmen [(1951)] 36 Cal 2d 768 or in People v. Modesto (1963) 59 Cal.2d 722, 729 . . . to the effect that jury instructions must be given whenever any evidence is presented, no matter how weak. To the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved. [Citations.] To hold otherwise would mandate instructions whenever . . . evidence of any [defense] . . . was offered, a result contrary to existing authority. [Citations.]" This was the California Supreme Court's last pronouncement on Carmen. It's most recent pronouncement on Modesto was in People v. Flood (1998) 18 Cal.4th 470, 480, which quoted the above cited language in Flannel. Also, in People v. Sedeno (1974) 10 Cal.3d 703, 718, [disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89; People v. Breverman (1998) 19 Cal.4th 142, 163], the California Supreme Court held, "It is not error to refuse a request for instructions on self-defense when there is no evidence from which it can be inferred that the defendant feared . . . bodily harm . . . at the hands of the victim . . . ." In People v. Quintero (2006) 135 Cal.App.4th 1152, 1165, Division One of this court held, "[A] court need not give a requested instruction on a purported defense unless it is supported by evidence that is substantial, i.e., that the evidence is reasonable, credible and of solid value." (Accord, People v. Mentch (2008) 45 Cal.4th 274, 288.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
MILLER
J.