Opinion
F075764
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS JAMES BARNETT, Defendant and Appellant.
Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F16905115)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Nicholas James Barnett was charged and convicted of several felony and misdemeanor offenses for a domestic violence incident where he assaulted his cohabitant, who was the mother of his children. He was sentenced to 13 years in state prison.
On appeal, defendant argues that the court incorrectly instructed the jury on the great bodily injury enhancement, failed to properly respond to the jury's question about the definition of great bodily injury, the errors were prejudicial, and the jury's true finding on the enhancement is not supported by substantial evidence.
Defendant further argues the matter must be remanded for a new sentencing hearing because when the court denied probation, it failed to consider whether his criminal conduct was the result of a mental disorder stemming from his service in the military, as required by Penal Code section 1170.9.
All further statutory citations are to the Penal Code unless otherwise indicated.
We will affirm.
FACTS
Jane Doe (Jane) testified that as of 2016, she had been in a relationship with defendant for seven years. They lived together with their two children.
The consolidated information identified the victim as Jane Doe. On the first day of trial, the prosecutor advised the court that the victim was willing to waive confidentiality for purposes of an evidentiary hearing and the witness list that would be shown on voir dire. As a matter of caution, we will refer to the victim as Jane.
Jane testified she had a prior conviction three years earlier for the infraction of stealing property valued at less than $50.
Jane testified they had been through "a lot in [their] relationship, as far as emotional problems and arguing and fighting and breaking up." In the summer or fall of 2011, Jane argued with defendant about money issues and his infidelity. Jane left him for three days and stayed with her mother. She returned because they already had one child, and they decided to try and make things work.
In November 2015, Jane and the children left defendant because they were arguing a lot. He was under stress and overwhelmed with financial concerns. After one month, Jane returned because defendant said he was receiving therapy and medication, and he promised to change and spend more time with the family.
At some point after she returned, Jane accused defendant of being unfaithful to her and threatened to kill herself. During other arguments, defendant talked about committing suicide, but Jane testified "[i]t wasn't anything very serious .... It was just like empty threats." Defendant and Jane had never used physical force against each other prior to the incidents in this case.
THE CHARGED OFFENSES
Defendant and Jane argue
The charged offenses in this case are based on a series of incidents that began on August 13, 2016. Jane testified as to what happened in each incident.
Jane testified that just before midnight on August 13, 2016, she was at home with defendant and their children. Jane argued with defendant because he had stopped taking medication for depression and ADHD, and he was acting different. Jane talked to him about it and he became very upset. Jane testified they had already been building up "negative feelings," she was under stress from a recent miscarriage, and they started arguing. Jane hits defendant
Jane testified she yelled at defendant because she was upset that he would not look at her. Jane walked to the couch where defendant was sitting. She leaned down and "smack[ed]" defendant's cheek with her hand. Defendant demanded an apology for hitting him. Jane refused and they argued. Jane went into the master bedroom to get away from him. Defendant hits Jane's ear (count 5)
About an hour later, defendant entered the master bedroom and told Jane to apologize for hitting him. Jane refused and said to leave her alone, and they argued.
Jane testified defendant eventually got into bed next to her. Defendant asked if she thought it was okay to just hit people. They were laying on their sides and facing each other. Jane testified that she was "halfway through answering" his question when defendant lifted up his right arm, used the palm of his hand, "smacked me across my face when I was laying down," and hit her ear and cheek.
Based on hitting Jane in the ear, defendant was charged with count 5, misdemeanor infliction of corporal injury to a coparent on August 13, 2016 (§ 273.5, subd. (a)). He was found not guilty of the charged offense, and convicted of the lesser offense of misdemeanor battery against the mother of his child (§ 243, subd. (e)(1)).
Jane testified the "smack" felt "pretty hard." The blow left "like a pinkish mark" on her left cheek and ear.
After defendant slapped her, he said something similar to "how do you like it[?]" Jane believed he hit her in retaliation for her slap on his cheek. Jane got out of bed, went into the children's bedroom, locked the door, and unplugged the video baby monitor so defendant could not see her. Jane charged her cell phone in case she needed to call someone, but she was not sure what to do. Defendant breaks down the bedroom door
About an hour later, defendant knocked on the door of the children's bedroom and softly told Jane to open it. Jane refused. Defendant became "more aggressive and ... serious sounding," and started yelling at her. Jane dialed 911 on her cell phone in case he broke open the door.
Defendant kept knocking for 20 to 30 seconds and then forced open the door. Jane was not sure if he used his shoulder or kicked it in. Defendant walked into the bedroom and discovered Jane was already talking to the 911 dispatcher. Jane testified defendant was shocked and asked her, "Really?" Jane yelled at him and he left the room, and drove away in the car. Officer Rodriguez responds to the house
At 12:30 a.m. on August 14, 2016, Officer Samantha Rodriguez responded to the house and interviewed Jane. Rodriguez found the door handle to the children's bedroom was still locked, but the door had been broken open and the wooden frame was cracked.
Officer Rodriguez observed redness on Jane's left ear, and her ear and cheek were pink.
Officer Rodriguez provided Jane with an emergency protective order against defendant.
Jane testified defendant sent her text messages after he left the house. In response, Jane sent him a text message that she had filed for a protective order and he could not contact or come near Jane or the children for five days. Defendant continued to send messages to Jane, and said he went into the bedroom because he did not know what was going on with the children. Defendant's statements to Officer Rodriguez
Officer Rodriguez testified she left Jane's house around 1:15 a.m. on August 14, 2016. At some point prior to 5:00 a.m., Rodriguez had a telephone conversation with defendant and recorded it.
Officer Rodriguez advised defendant she wanted to talk about an incident that happened earlier with Jane. Defendant said Jane was his wife, they had been arguing, and she hit him across the face. Defendant said he never touched her. Jane locked herself in the children's bedroom and would not respond to him. Defendant was concerned about his children and busted down the door. Jane was already on the telephone and falsely told the police that he hit her. Defendant said he left.
Officer Rodriguez told defendant that Jane said she hit him, and asked about the redness on her ear. Defendant denied hitting her and thought she could have slept on her ear.
Defendant said he was going to stay with a friend, but he wanted to return to the house to get his clothes. Defendant asked whether he would be arrested if he went home, and if the police could go with him. Officer Rodriguez told defendant about the protective order and it was good for five days, but acknowledged he had not been served with it. Rodriguez advised defendant not to return because he was not allowed within 100 yards of Jane. Rodriguez advised defendant not to text or call her. Defendant said he wanted a restraining order against Jane because she hit him and was acting crazy.
Defendant said he was concerned Jane would take his things. Officer Rodriguez told defendant that everything was community property since they were married (based on his statement that Jane was his wife), and they could not steal from each other. Rodriguez suggested defendant ask a mutual friend to get his possessions from the house. Defendant climbs through the bedroom window
Jane remained in the family home after Officer Rodriguez took her report. In the early morning hours of August 14, 2016, Jane went back to sleep in the master bedroom.
Around 5:00 a.m. on August 14, 2016, Jane woke up because she heard someone open the bedroom window and enter the house. Jane sat up and saw defendant climb through the window.
Jane screamed at defendant to get out. Defendant said he just wanted to get some stuff. Jane kept screaming and reached for her cell phone to call 911 because she was afraid of what he might do. Defendant strangles Jane (count 2)
Jane testified defendant jumped on top of her and tried to get the cell phone out of her hands. They wrestled for her cell phone, but she held onto it. Jane testified defendant began to strangle her. Jane was lying facedown on the bed. Defendant was behind her, and he put his hands around her neck and began to squeeze the front of her neck with his fingers.
Jane felt pressure around her entire neck and throat, and it was hard to breathe. Jane thought defendant might have put his arm around her neck, but she was not sure because of "the whole chaos of everything." Jane tried to grab defendant's arms to get free. Jane might have scratched him, but she did not have the strength to get away. Everything "started to go black" and she felt like she was running out of air, but she did not pass out. Defendant punches Jane in the eye (count 1 & great bodily injury enhancement)
Defendant was charged and convicted of count 2, felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) on August 14, 2016, for strangling Jane.
Jane testified defendant let go of her throat, and she sat up and screamed. Jane told him to get out. She did not lunge at him or try to hit him. Defendant got off the bed and punched Jane in her left eye. Jane did not see the blow coming. Defendant used "a lot more force" to punch her in the eye compared to when he hit her in the ear earlier that night. The punch "felt like a fist for sure. It didn't feel like a palm or a slap or anything like that."
Based on defendant's act of punching Jane in the eye, he was charged and convicted of count 1, felony infliction of corporal injury to the mother of his child resulting in a traumatic condition on August 14, 2016 (§ 273.5, subd. (a)), and the jury found true the allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (e)).
In part I. of the Discussion, we will address defendant's contentions that the court improperly instructed the jury on both the definition of great bodily injury and, in response to the jury's question about that definition, the enhancement is not supported by substantial evidence.
Jane grabbed her eye and rolled off the bed. She looked in the mirror and screamed at defendant, "'My eye. My eye. What did you do to me?'"
Defendant left the house without saying anything and drove away. Officer Rodriguez returns to Jane's house
Jane testified her left eye immediately began to swell, and turned purple and red. There was also a laceration or cut above her eye near the eyelash, and some bleeding from the cut.
Jane called the police and reported the assault. Officer Rodriguez returned to the house. Jane told Officer Rodriguez defendant punched her in the eye and choked her.
Officer Rodriguez testified Jane's left eye was purple and swollen shut. There was "significant swelling" in her left eye that "extended to her temple area" and Rodriguez could "[b]arely" see the eye because of the swelling. Rodriguez also saw two red marks around the base of her neck, near her collarbone, which Jane said were from defendant's hands around her neck. Rodriguez took photographs of Jane's face and neck.
Officer Rodriguez's photographs were introduced at trial and showed Jane's left eye was completely closed, purple and red marks were on the top and side of Jane's left eye lid, and a very dark red mark was across half of the eyelid, immediately above the eyelash.
An emergency medical technician responded to the house and examined Jane, and wanted her to go the hospital. Jane declined because she did not have anyone to watch the children. A few hours later, Jane went to an urgent care office, but the staff just checked her vision and did not provide any treatment.
Jane testified her left eye was swollen shut for about two days and she was unable to wear her glasses. Her eye was black for three or four weeks. The laceration took a few weeks to heal.
Jane took a photograph of her left eye two weeks after the incident. It showed the area immediately below her left eye was still dark red, purple, and swollen. Jane's eye was open, but the "white" part of her eye was still dark red. Defendant's messages to Jane (counts 3 and 4)
Shortly after defendant left the house on August 14, 2016, Jane discovered defendant forget his cell phone on the bedroom floor.
During the daytime on August 14, 2016, Jane received a series of messages on her cell phone that were sent from defendant's email address. Defendant asked to come home because he wanted to take care of Jane and the children, he felt disgusted with himself, and he wanted to die.
Defendant also wrote that he would take it back if he could, he wanted to jump in front of a train, and he did not want "to go to jail, or die and miss my [children], I am scared. I Want to be with you."
In response, Jane sent photographs of her swollen eye to defendant to show what happened to her face. Jane wrote that he almost killed her, she still had marks on her neck, and she could not wear her glasses because of the swelling in her eye. Defendant replied he was sorry for "ever hurting you like this, for ever hurting you," he was suicidal, and he knew she did not want to call the police on him.
In his next series of messages, defendant asked Jane whether he really deserved to go to jail, and "please babe you know I don[']t deserve this." Jane replied by asking if he had seen the pictures, and he replied that he could have put her in jail "when you hit me." Defendant wrote back that Jane knew she was wrong too, and "[P]lease. [W]e can unfuck this together. [I] will do anything. [P]lease. [T]he only way out of this for me without you is death."
Jane wrote to defendant that she did not want this either and "I can't save us all." Defendant replied, "[W]e can undo this shit. [P]lease don't send me to jail .... [P]lease I would rather die. You[']re fucking killing me." Defendant's pretrial statements
Defendant was charged and convicted of count 3, dissuading a witness from prosecuting a crime on August 14, 2016 (§ 136.1, subd. (b)(2)), based on the text messages he sent after he punched Jane in the eye, where he wrote that he did not want to go to jail and she knew he did not deserve to go to jail.
Defendant was separately charged and convicted of the same offense in count 4, based on additional text messages sent on August 14, 2016, where he wrote that Jane knew she was wrong too, and they could "undo" and "unfuck this together."
Around 11:00 a.m. on August 15, 2016, Officers Alvarado and Ford interviewed defendant at the Fresno County Jail. The interview was recorded and introduced into evidence.
Defendant was not in custody or under arrest when the interview began. Defendant said he heard that morning the police were looking for him and he voluntarily went to the department to talk to them.
Officer Alvarado asked defendant what happened the previous day. Defendant said that before midnight on August 13, 2016, Jane was upset because of her health problems. She began yelling at him and slapped him across the face. Jane eventually went into the children's room, locked the door, and unplugged the baby monitor.
Defendant said he never hit Jane. He was upset because he tried to talk to her through the door, but she would not respond. Defendant said he "bumped" open the bedroom door with his hip, but he did not break down the door, and he went in to check on his children. Defendant realized Jane was on the phone with the police and left. Defendant denied that he hit her.
Defendant said he talked to an officer later that night and said he needed to get his medication and clothes from the house. Defendant said he went back to the house and the window was open. He went in through the window and Jane tried to attack him. Defendant said Jane screamed and was "attacking me with her hand [and] her phone." Jane was trying "to get at my face" and he wasn't sure if she was throwing punches at him. Jane was "just coming at me with her phone in her hand, and so I'm like deflecting and just keeping my hands up in like a defensive position.... [Jane] just keeps coming at me and so I mean I just did what I could to defend myself."
Defendant acknowledged Jane's eye was injured, but he did not know how it happened because "it was hands everywhere."
Defendant was asked if he tried to choke Jane. Defendant said he "grab[bed] her around and ... tried to get her to stop attacking me but I wasn't like trying to choke her out." Defendant demonstrated how he grabbed her to defend himself. An officer asked defendant if he used a chokehold. Defendant said he was behind Jane and put his arm around her neck, but denied he used a chokehold. The officer said it looked like a chokehold. Defendant admitted his arm went around her neck, but disagreed it was a chokehold, and said he knew "how to apply a carotid and I didn't apply a carotid." Defendant did not intend to choke her, but it was "violent" and "messy."
Defendant said Jane kept trying to hit him and he let her go. He grabbed his things and left the house.
At the end of the interview, the officers advised defendant that he was in custody and would be booked into jail for strangling Jane and committing a burglary when he climbed through the window. The officers advised defendant about the protective order, read it to him, and served him with a copy. Defendant violates the protective order (count 7)
On August 18, 2016, defendant appeared in court and was served with a criminal protective order. The court advised defendant that the order prohibited him from having any personal, telephonic, written, third party, or electronic contact with Jane; not to come within 100 yards of her person or residence; and not to possess or have in his control any firearm. Defendant said he understood. Defendant was released on bail.
On August 20, 2016, after defendant had been notified about the protective order, Jane received messages from defendant's email address that said it was hard not to talk to her, he had to make decisions that affected their financial future, and "my love please [don't] turn this in, I just wanted you to know I love you and hate is the farthest thing I feel for you. I will leav[e].... Please let me come home."
Defendant was charged and convicted of count 6, dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)); and count 7, misdemeanor contempt of court in a pending case by willful disobedience of a protective order or stay-away court order lawfully issued pursuant to section 136.2 in a pending criminal proceeding involving domestic violence (§ 166, subd. (c)(1)), based on the email messages he sent to Jane on August 20, 2016, after he appeared in court on August 18, 2016, and was advised about the criminal protective order and ordered not to contact her.
On August 31, 2016, defendant appeared in court. He was ordered to return on September 28, 2016, and he remained out of custody on bail. Defendant ransacks the house (counts 8-11)
At some point before September 28, 2016, Jane sent defendant a message that she and the children were going to have to move out of the house, and they had started packing their property. Jane and the children sometimes stayed at her mother's house during this time.
As of September 28, 2016, defendant had been charged with a felony violation of section 273.5, subdivision (a), for punching Jane in the eye. Defendant had been ordered to return to court on September 28, 2016, but failed to appear on that date.
Defendant was charged and convicted of count 8, failure to appear in court while on bail to evade the process of the court (§ 1320.5), with an on-bail enhancement (§ 12022.1), for failing to appear as ordered on September 28, 2016.
On September 28, 2016, Jane was away from the house and received several text messages from defendant. In the first set of messages, defendant said he needed her, begged her to talk to him, and asked if she would run away with him and start new somewhere else.
Defendant's next messages thanked Jane for the "weed" and for leaving it in his top drawer, told her to have a nice life, and that it was a shame she could not share "all this money with me." A photograph was attached that showed the clothes in their bedroom closet. Defendant wrote he got his stuff, "some weed," a new car, and he was "out."
Defendant's next message said, "Every time you leave I am ransacking the place." Defendant sent a photograph that showed him in their bed and wrote, "It's so nice to have blankets and pillows. Thank you." He also wrote that Jane had done the "absolute bare minimum and calling it trying so hard to make it work," and ended with, "Enjoy that single mom life."
Jane was shocked and scared that defendant was in the house even though she had the protective order. Jane called the police and met them at her house. When she arrived at the house, she discovered the lock on the backyard gate was broken, and the side garage door was also broken open. The television screen in the living room was cracked and a second television was damaged. The interior of the house had been ransacked and clothes and other property were thrown around the rooms. The sheets and bedding had been removed from the master bedroom. A dresser was knocked over and the contents were on the floor.
Defendant's entry into the family residence was charged as count 9, first degree residential burglary on September 28, 2016 (§§ 459, 460, subd. (a)), with an on-bail enhancement (§ 12022.1). The jury found him not guilty of burglary and there were no lesser offenses alleged.
Defendant was charged and convicted of count 10, misdemeanor vandalism of property belonging to Jane on September 28, 2016 (§ 594, subd. (a)(2)), for ransacking the house.
Defendant was also charged and convicted of count 11, misdemeanor contempt of court in a pending case on September 28, 2016, by willful disobedience of a protective order or stay-away court order lawfully issued pursuant to section 136.2 in a pending criminal proceeding involving domestic violence, based on the text messages he sent to Jane on that date about his entry into the house. (§ 166, subd. (c)(1)).
Jane testified defendant had purchased both televisions, and the property and most of the bedding that were gone belonged to him.
Defendant had been ordered to return to court in this case on October 5, 2016, but he failed to appear on that date. Prosecution expert
According to the probation report, defendant was arrested in the state of Washington on October 2, 2016, and returned to Fresno County.
Bob Meade, a licensed marriage and family therapist, testified for the prosecution generally about domestic violence, intimate partner battering syndrome, the cycle of violence, and delays or failures to report of domestic violence.
CONVICTIONS AND SENTENCE
After a jury trial, defendant was convicted as charged of count 1, felony infliction of corporal injury to a coparent resulting in a traumatic condition, with a great bodily injury enhancement; counts 3 and 4, felony dissuading a witness from prosecuting a crime; count 6, felony dissuading a witness from reporting a crime; count 7, misdemeanor contempt of court in a pending case; count 8, felony failure to appear in court while on bail; count 10, misdemeanor vandalism of property; and count 11, misdemeanor contempt of court in a pending case.
As to count 2, the jury found defendant not guilty of the charged offense of felony assault by means likely to produce great bodily injury, but guilty of the lesser included offense of misdemeanor assault.
As to count 5, the jury found defendant not guilty of misdemeanor corporal injury, but guilty of the lesser included offense of misdemeanor battery against the mother of his child (§ 243, subd. (e)(1)).
The jury found defendant not guilty of count 9, burglary.
The court found the on-bail enhancements true for counts 6 and 8. Sentence
The court imposed an aggregate term of 13 years: count 1, corporal injury to a coparent, the lower term of two years, plus a consecutive lower term of three years for the great bodily injury enhancement; count 3, dissuading a witness, a fully consecutive midterm of two years; and count 6, dissuading a witness, a fully consecutive midterm of two years; plus two consecutive two-year terms for the on-bail enhancements found true for counts 6 and 8. The court imposed concurrent terms for counts 4 and 8, with credit for time served on misdemeanor counts 2, 5, 7, 10, and 11.
The court imposed a restitution fine of $3,900 (§ 1202.4), imposed and stayed the parole revocation fine under section 1202.45, and reserved jurisdiction for future victim restitution. The court also imposed a court security fee of $200 (§ 1465.8); and a criminal conviction assessment fee of $150 (Gov. Code, § 70373).
The court issued a criminal protective order for defendant not to have any personal, telephonic, written, or third party contact with Jane; not to come within 100 yards of her or her residence; and not to have any electronic contact with her, to remain in effect until May 25, 2021.
DISCUSSION
I. The great bodily injury instruction
In count 1, defendant was convicted of felony infliction of corporal injury to a coparent resulting in a traumatic condition (§ 273.5, subd. (a)), and the jury found true the enhancement that defendant personally inflicted great bodily injury on Jane (§ 12022.7, subd. (e)), based on the incident when he punched her in the eye.
Defendant contends the jury's true finding on the great bodily injury enhancement must be reversed because CALCRIM No. 3163, the definitional instruction, is incorrect as a matter of law since it defines great bodily injury as an injury "'greater than minor or moderate harm,'" and the jury's finding on the enhancement is not supported by the evidence.
As a separate matter, defendant argues the court improperly responded to the jury's question about the definition of great bodily injury, and violated section 1138's mandatory duty to clarify any jury confusion, by telling the jury to reread CALCRIM No. 3163. Defendant argues the error is prejudicial because the evidence raised a close question whether the injury to Jane's eye was great bodily injury.
Defendant concedes counsel failed to object to both CALCRIM No. 3163 and the court's response to the jury's question, and argues he has not forfeited the issues because they involve his substantial rights; in the alternative, he argues counsel was prejudicially ineffective for failing to so object.
We begin with the definition of great bodily injury. As relevant to this case, section 12022.7, subdivision (e), states: "Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years...." "As used in this section, 'great bodily injury' means a significant or substantial physical injury." (§ 12022.7, subd. (f).)
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066, italics added.) "Proof that a victim's bodily injury is 'great'—that is, significant or substantial within the meaning of section 12022.7—is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (People v. Cross (2008) 45 Cal.4th 58, 66.)
We will affirm a jury's finding on a great bodily injury enhancement if supported by substantial evidence. (People v. Cross, supra, 45 Cal.4th at pp. 64-65; People v. Escobar (1992) 3 Cal.4th 740, 750, disapproving People v. Caudillo (1978) 21 Cal.3d 562.)
B. Instructions
The jury received the pattern version of CALCRIM No. 3163 on the great bodily injury enhancement alleged as to count 1.
"If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the People have proved the additional allegation that the defendant personally inflicted great bodily injury on
[Jane] during the commission of that crime, under circumstances involving domestic violence.
"'Great bodily injury' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"'Domestic violence' means abuse committed against an adult who is the mother of his child.
"Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
"The People have the burden of proving each allegation beyond a reasonable doubt...." (Italics added.)
C. Closing arguments
In closing argument, the prosecutor explained that defendant's act of punching Jane in the eye supported count 1, infliction of corporal injury to a coparent resulting in a traumatic condition (§ 273.5, subd. (a)), and the allegation that he personally inflicted great bodily injury (§ 12022.7, subd. (e)). The prosecutor argued the nature of the injury to Jane's eye refuted defendant's claims in his pretrial interview that she tried to hit him, he was defending himself, and "she must have struck herself causing that injury.... That injury is more than what can happen when you have just crazy hands trying to slap at somebody else. That is a punch in the face."
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.... That is an injury, an eye that is swelled shut for two or three days. That is more than minor or moderate harm. We have all seen boxing matches, MMA fight[s], hockey fights, where people who are intending to fight and punch each other do not receive an injury that severe. It goes all the way up from the eye, all the way up to here, you see marks at [her] hairline .... That is a significant injury. That is more than minor or moderate harm.
"Here's the other example, the injury to the ear [count 5]. One could consider that minor or moderate. The injury to the neck [count 2]. One might consider that minor or moderate. This is more.... That is a significant injury. That is more than minor or moderate harm. In fact, there is still puffiness [referring to a photograph of Jane's eye taken two
weeks later]. The area around ... the blue of the eye, the whites are still red and bloodshot and there is still significant bruising two weeks later. That is great bodily injury." (Italics added.)
Count 5 was based on defendant's act of slapping Jane and leaving a red mark on her ear, and count 2 was based on defendant's act of strangling Jane, which left finger marks around her neck. A great bodily injury enhancement was not alleged for either counts 2 or 5.
Defense counsel acknowledged in his closing argument that Jane's black eye would be a traumatic condition as alleged in count 1, but argued defendant was not guilty of that charge because he did not intentionally punch Jane in the eye. Counsel relied on defendant's pretrial statements that Jane was "coming at him" and waving around her hands, and defendant put up his hands to deflect her. Counsel asserted defendant could have pushed her away and "made contact with her eye and caused that injury."
The jury was instructed with CALCRIM No. 840 on the elements of count 1, infliction of an injury on a coparent resulting in a traumatic condition (§ 273.5, subd. (a)). The instruction defined "traumatic condition" as "a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." (Italics added.)
Defense counsel also acknowledged Jane had "a nasty black eye. It's not pleasant. It looks painful," but the black eye did not constitute great bodily injury as alleged in the enhancement.
"Great bodily injury is injury that is greater than minor or moderate harm. The People provided you with no evidence of what constitutes moderate harm. There is no question this is more than minor harm. What would be minor, a little cut on your finger. Anything can be minor. So I don't believe anyone would argue this is minor harm. Is it greater than moderate harm? What is moderate harm? This is a black eye. It takes—I don't know if anyone has ever run into a table at significant speed, not judging it correctly, and you get a nasty bruise on your leg and it takes weeks to go away. That is what bruises do. The question is, is this injury great bodily injury? Or is it a bruise and a black eye, the kind that result from hitting your head on a door or any other type of injury that causes that type of—that kind of bruising and that type of black eye.
"So is it pretty to look at? No. But do the People prove that it is great bodily injury? No. They didn't provide you any medical evidence. They didn't provide you any doctor testimony about what causes this type
of injury, whether it damages anything within the eye or outside of the eye. They didn't provide you with anything other than, look, it's nasty looking. It's ugly. Well, yeah, it is. But is it great bodily injury within the definition of that charge? And I submit to you that they just want you to look at it and say, yeah, that's bad enough. Without providing you any guidance at all on what constitutes more than moderate harm. Again, worse than minor, but is it more than moderate harm? And what is moderate harm?
"So did the People prove this great bodily injury beyond a reasonable doubt? No, they did not." (Italics added.)
D. The jury's question
During deliberations, the jury sent the following question to the court:
"For 'great bodily injury' does injury need to be greater than a minor injury OR a moderate injury? Can injury just be greater than minor or does it need to be greater than moderate as well?"
The court consulted with the attorneys and sent the following written response to the jury with the attorneys' consent:
"Please refer to CALCRIM [No.] 3163 where that phrase is defined." (Full capitalization omitted.)
Defense counsel did not object to the court's response, and the jury did not ask additional questions on this matter.
Defendant was convicted of count 1, and the jury found the great bodily injury enhancement true.
E. Forfeiture
Defendant contends that CALCRIM No. 3163 was incorrect as a matter of law, and the court improperly responded to the jury's question about great bodily injury. Defendant did not object to either the instruction or the court's response to the jury's question, but argues he has not forfeited these issues because they involve violations of his substantial rights. (See, e.g., People v. Mason (2013) 218 Cal.App.4th 818, 823.) "'"[A]scertaining whether ... instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." [Citation.]'" (Id. at p. 824.)
In the alternative, defendant argues that to the extent defense counsel forfeited review by failing to object, counsel was prejudicially ineffective for failing to object to the instruction and the court's response to the jury's questions. "To show ineffective assistance, [the] defendant must show that 'counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.'" (People v. Woodruff (2018) 5 Cal.5th 697, 761.) To determine if counsel's failure to object was ineffective and prejudicial, we must also address the merits of defendant's claim. (People v. Osband (1996) 13 Cal.4th 622, 693.)
F. CALCRIM No. 3163
Defendant argues CALCRIM No. 3163's definition of great bodily injury was incorrect as a matter of law because it permitted the jury to find the enhancement true if it found the victim's injury was "only more than minor harm, and need not be more than moderate harm as well." Defendant argues this instruction was legally erroneous because "an injury that is merely moderate (or even less than moderate, though still more than minor) does not qualify as great bodily injury."
We review de novo the question of whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "[A] jury instruction cannot be judged on the basis of one or two phrases plucked out of context ...." (People v. Stone (2008) 160 Cal.App.4th 323, 331.) While a single sentence in an instruction "may or may not be confusing, depending upon the context in which the sentence lies," an instructional error "'"cannot be predicated upon an isolated phrase, sentence or excerpt taken from the instructions ...."'" (People v. Rhodes (1971) 21 Cal.App.3d 10, 21.) Instead, "'"'"[t]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."'"'" (People v. Young (2005) 34 Cal.4th 1149, 1202.) "The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (Ibid.)
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong, supra, 8 Cal.App.4th at p. 1066, italics added.) Contrary to defendant's arguments, CALCRIM No. 3163 did not instruct the jury to find the enhancement true if it found the injury to Jane's eye only resulted in "moderate harm." Defendant's challenge is based on taking one phrase out of context of the entirety of the instruction. The entire instruction correctly defines great bodily injury as "significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (CALCRIM No. 3163, italics added.) The instruction did not allow the jury to find the enhancement true only upon the determination that Jane's injury resulted in "moderate" harm. The instruction expressly stated the jury had to find the injury had to be "significant or substantial," consistent with the well-recognized definition of great bodily injury.
Indeed, the prosecutor made this point in closing argument, that the injury had to be "significant or substantial," and asserted the injury to Jane's eye was "significant" and "more than minor or moderate harm." Defense counsel similarly stated the correct legal standard, conceded the injury to Jane's eye was "more than minor harm," but asserted the jury could not find the great bodily injury enhancement true because the People failed to prove the injury was "greater than moderate harm."
We find CALCRIM No. 3163 correctly stated the legal definition of great bodily injury, the attorneys' closing arguments were consistent with the instruction's definition, defendant's substantial rights were not violated, and counsel was not prejudicially ineffective for failing to object to the instruction.
G. The court's response to the jury's question
Defendant next argues the court violated its statutory duty under section 1138 when it responded to the jury's question about the definition of great bodily injury by simply telling the jury to reread CALCRIM No. 3163.
Section 1138 states: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
When a jury asks a question after retiring for deliberation, "[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) But "[t]his 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." (People v. Beardslee (1991) 53 Cal.3d 68, 97; accord, People v. Brooks (2017) 3 Cal.5th 1, 97; People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
"Indeed, comments diverging from the standard are often risky." (People v. Beardslee, supra, 53 Cal.3d at p. 97.) "Jury questions can present a court with particularly vexing challenges. The urgency to respond with alacrity must be weighed against the need for precision in drafting replies that are accurate, responsive, and balanced. When a question shows the jury has focused on a particular issue, or is leaning in a certain direction, the court must not appear to be an advocate, either endorsing or redirecting the jury's inclination. Although comments diverging from the standard should be embarked on with care, a trial court must do more than figuratively throw up its hands and tell the jury it cannot help. It must consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice." (People v. Moore, supra, 44 Cal.App.4th at p. 1331.)
"Although the trial court need not always elaborate on the standard instructions, the trial court nevertheless has 'a "'mandatory' duty to clear up any instructional confusion expressed by the jury." [Citation.]' [Citations.] This means that a trial court's response to a jury question can be erroneous even if it does not technically misstate the law." (People v. Fleming (2018) 27 Cal.App.5th 754, 766.)
We review for an abuse of discretion any error under section 1138. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) Such an error is subject to the prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Roberts (1992) 2 Cal.4th 271, 326.)
As explained above, the jury asked the court whether the injury had to be "greater than a minor injury OR a moderate injury? Can injury just be greater than minor or does it need to be greater than moderate as well?" The jury's question inferred that it may have only focused on the phrase "minor or moderate" harm, and been confused by the use of the word "or." However, the court does not have a duty to give amplifying or clarifying instructions for terms that are "'commonly understood by those familiar with the English language.' [Citation.]" [Citation.]' [Citation.] Only where a term used in an instruction has a specific or technical meaning peculiar to the law is a further explanatory instruction necessary." (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318-1319.)
In any event, the court did not "throw up its hands" or tell the jury that it could not respond to its question. (See, e.g., People v. Beardslee, supra, 53 Cal.3d at pp. 96-97.) Instead, the court advised the jury to again read CALCRIM No. 3163, which contained the full and correct definition of great bodily injury as "significant or substantial." "[T]he trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.'" (People v. Lua (2017) 10 Cal.App.5th 1004, 1017.)
Defendant asserts the court should have simply answered "yes" to the jury's question to advise that great bodily injury required more than moderate harm. However, the court's decision to instruct the jury to review CALCRIM No. 3163 correctly focused the jury's attention on the entirety of the instructional definition that great bodily injury meant "significant or substantial physical injury." We presume jurors are intelligent persons capable of understanding the jury instructions and applying them to the evidence, and followed the court's instruction to reread the entirety of CALCRIM No. 3163. (People v. Carey (2007) 41 Cal.4th 109, 130.)
We thus conclude the court did not abuse its discretion when it responded to the jury's question, defendant's substantial rights were not violated, and counsel was not ineffective for failing to object.
G. The enhancement is supported by substantial evidence
Having found defendant's legal challenges to CALCRIM No. 3163 are meritless, we turn to defendant's argument that the jury's true finding on the great bodily injury enhancement is not supported by substantial evidence.
"[A] great bodily injury determination by the jury rests on the facts as presented at trial in the context of the particular crime and the particular injuries suffered by the victim." (People v. Cross, supra, 45 Cal.4th at p. 65.) "This court has long held that determining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] '"A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description."' [Citations.] Where to draw that line is for the jury to decide." (Id. at p. 64.)
The definition of "'significant or substantial physical injury'" contains "no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function." (People v. Escobar, supra, 3 Cal.4th at p. 750; accord, People v. Cross, supra, 45 Cal.4th at p. 64.)
"Although any medical treatment obtained by the victim is relevant to determining the existence of 'great bodily injury' [citation], the statutory definition and relevant CALCRIM instruction ... do not require a showing of necessity of medical treatment. Nor are we aware of any case authority imposing such a requirement." (People v. Wade (2012) 204 Cal.App.4th 1142, 1150.)
"An examination of California case law reveals that some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury.' (People v. Jaramillo (1979) 98 Cal.App.3d 830, 836-837 [multiple contusions, swelling and discoloration of the body, and extensive bruises were sufficient to show 'great bodily injury']; see People v. Sanchez (1982) 131 Cal.App.3d 718, disapproved on other grounds in People v. Escobar[, supra,] 3 Cal.4th [at p.] 751, fn. 5 [evidence of multiple abrasions and lacerations to the victim's back and bruising of the eye and cheek sustained a finding of 'great bodily injury']; see also People v. Corona (1989) 213 Cal.App.3d 589 [a swollen jaw, bruises to head and neck and sore ribs were sufficient to show 'great bodily injury'].)" (People v. Washington (2012) 210 Cal.App.4th 1042, 1047-1048.)
In People v. Le (2006) 137 Cal.App.4th 54, the court rejected the assertion that "'mere soft tissue injury' cannot be 'significant or substantial' within the meaning of section 12022.7[, subdivision ](f), and we see no reason to accept that proposition without authority." (Id. at p. 59.)
In People v. Muniz (1989) 213 Cal.App.3d 1508, the defendant attempted to sexually assault the victim, the victim resisted, and the defendant hit her in the face and head with his fist. The court found the jury's finding on the great bodily injury enhancement was supported by substantial evidence. (Id. at pp. 1513, 1520.)
"[The victim] sustained severe injuries to her eye. It was 'completely black, blue, purple, completely swollen shut' and 'three to four times the size of a normal eye.' The swelling protruded past the point of the nose. [The victim] went to an ophthalmologist a day or two after the
assault, but the doctor could not examine the retina because the eye was closed shut. She had to return a few weeks later for a follow-up examination. [The victim's] bruises had not completely healed at the time of the trial—four months after the assault. [The victim] testified she lost consciousness and she described the force of [the defendant's] blows as so severe that it 'felt like splinters going through my skull. And I saw like white lights in front of my eyes.'" (People v. Muniz, supra, 213 Cal.App.3d at p. 1520.)
In contrast, in People v. Martinez (1985) 171 Cal.App.3d 727, the victim was stabbed in the back while wearing several layers of clothing and a heavy coat, and the knife wound left "'a minor laceration-type injury in the middle of his back.'" (Id. at p. 735.) The court reversed the great bodily injury enhancement for insufficient evidence because the small cut was "'almost like a pinprick,'" and the prosecutor conceded there was insufficient evidence and had asked the court to strike the charged enhancement. (Id. at pp. 735-736.)
In this case, defendant contends the enhancement must be reversed because there was no medical evidence about the nature and extent of Jane's injury. However, a great bodily injury enhancement may be found true without evidence the victim received medical treatment. (People v. Wade, supra, 204 Cal.App.4th at p. 1150.) The jury's finding is supported by substantial evidence that the soft tissue injuries to Jane's left eye and temple were "significant or substantial" and greater than "minor or moderate harm." (CALCRIM No. 3163.) Jane testified defendant punched her left eye, and it felt like he used "a fist for sure. It didn't feel like a palm or a slap or anything like that." Jane's left eye immediately began to swell and it turned purple and red. There was also a laceration or cut above her eye, near the eyelash, and some bleeding from the cut. When Officer Rodriguez arrived at the house shortly after the incident, she discovered Jane's left eye was purple and swollen shut. There was "significant swelling" in her left eye that "extended to her temple area" and Rodriguez could "[b]arely" see the eye because of the swelling.
Jane testified her left eye was swollen shut for about two days and she was unable to wear her glasses. Her eye was black for three or four weeks. The laceration took a few weeks to heal. Jane took a photograph of her left eye two weeks after the incident, and it showed the area immediately below her left eye was still dark red, purple, and swollen. Jane's eye was open, but the "white" part of her eye was still dark red.
The bruises and swelling to Jane's face, eye, and temple, and the laceration on her eye, were far from transitory, and there is substantial evidence to support the great bodily injury enhancement.
II. Section 1170.9
Defendant contends the matter must be remanded for resentencing because the court failed to comply with section 1170.9 and consider whether defendant's mental health issues resulted from his service in the military when it denied probation and sentenced defendant to state prison. The People assert defendant failed to make a prima facie showing that he was within the parameters of section 1170.9.
Defendant's sentencing arguments are based on section 1170.9, which provides certain benefits to individuals who served or are serving in the military and are convicted of criminal offenses, subject to specific prerequisites. It states:
"In the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who alleges that he or she committed the offense as a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from service in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her service. The court may request, through existing resources, an assessment to aid in that determination." (§ 1170.9, subd. (a), italics added.)
"If the court concludes that a defendant convicted of a criminal offense is a person described in subdivision (a), and if the defendant is otherwise eligible for probation, the court shall consider the circumstances described in subdivision (a) as a factor in favor of granting probation." (§ 1170.9, subd. (b)(1), italics added.)
Section 1170.91, subdivision (a), states: "If the court concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation." Defendant has not claimed the court violated this section when it sentenced him to prison, and limits his claim of error to section 1170.9.
Defendant contends that his statements to the probation officer showed that he suffered from a back injury from his military service that led to mental health problems for which he received treatment from Veterans Affairs, so that he committed the offenses in this case "as the result of mental illness stemming from his military service," and the court should have determined whether he was suffering from "mental health problems as a result of his ... service" as a factor in favor of placing him on probation. (§ 1170.9, subds. (a), (b)(1).)
We thus turn to the record to determine if the matter must be remanded for a new sentencing hearing.
B. Trial
Judge Harrell presided over defendant's jury trial and conducted the sentencing hearing, and was advised about defendant's military service.
During the pretrial evidentiary hearings, the prosecutor moved to exclude any references to defendant's status as a military veteran during voir dire and at trial. The prosecutor said defendant referred to his military service during his prearrest interview, when an officer asked whether he used a chokehold on Jane. The court said it would exclude that issue during voir dire, but the subject was admissible during trial if it was relevant.
The court later returned to the admissibility of defendant's prearrest statement that he used a particular hold around Jane's neck instead of another hold he learned in the military. The court granted defense counsel's motion to redact that passage from the interview. There was no evidence introduced about defendant's military service during the jury trial.
C. The probation report
The probation report stated that defendant served in the Army from 2007 to 2008, he was honorably discharged due to a medical injury, and he received monthly disability income from Veterans Affairs.
Defendant attended California State University, Fresno and earned a degree in criminology with an emphasis in law enforcement. At the time of this case, he had one semester remaining to earn a master's degree in counseling for mental health and rehabilitation.
Defendant told the probation officer he had a "'chronic back injury'" that occurred while he was in the Army and was the cause for his discharge. Defendant also said he was diagnosed with major depressive disorder, but had not been prescribed any medications. Defendant said he had recurring thoughts of suicide, but never attempted to take his life. Defendant also said he was subject to psychological abuse during his upbringing because his mother and stepfather were addicted to methamphetamine.
The probation report found one mitigating factor, that defendant did not have a prior criminal record.
The probation report further stated defendant was not eligible for probation for the instant offenses except in unusual cases where the interests of justice would be best served if he was granted probation (§ 1203, subd. (e)(3)), and there were no facts that would indicate the existence of an unusual case.
The probation report did not address section 1170.9.
The People's sentencing statement did not refer to defendant's military service. As for probation, the People stated that defendant was presumed ineligible under section 1203, subdivision (e)(3), and there were no unusual circumstances. Defendant did not file a sentencing statement.
D. Defendant's letter to the court
Defendant submitted a letter to the court, and expressed remorse for his conduct and wrote that his behavior toward Jane was not normal: "I was struggling with the treatment I was under for major depression and a debilitating back injury preventing me from my work. I was experiencing side effects from the depression medication and not being consistent in my intake of the ADHD medication. I tried reaching out to the resources afforded me through the Veterans Administration but any available appoint[ment] to be seen was months away."
Defendant wrote he had been a full-time student from 2009 until his arrest in this case. He had been employed since 2011, but became "too disabled to work in the spring of 2016. I am currently rated 80% disabled from the Veteran's Administration."
Instead of sending him to prison, defendant asked the court to send him to a diversion program at the Fresno Rescue Mission, which had already accepted him, because that would allow him to "simultaneously utilize my benefits for therapy at the Fresno Veteran's Hospital." Defendant wrote that he had started treatment "for major depressive disorder in December 2015. My symptoms were cognitive impairments and impulsive decision-making." Defendant attached the names and telephone numbers of his physician, psychiatrist, and clinical psychologist at the Fresno Veteran's Hospital.
E. The sentencing hearing
At the sentencing hearing, the court gave an indicated sentence of 13 years. Defense counsel asked the court to impose concurrent terms for a total sentence of 11 years. Counsel did not address defendant's military service or request probation.
Defendant addressed the court and apologized. He said he acted impulsively because he had some issues with his mental health, major depression, medication, treatment, and trying to support his family and he became too disabled to work. Defendant said he struggled growing up because his parents did not support him. Defendant did not address his military service.
Jane addressed the court and said defendant was not violent and needed help. Jane said his actions were the result of a "clouded" state of mind because he was withdrawing from psychiatric medication. Jane said defendant always wanted to help others and he "even served in the Army, putting his life on the line for our country."
During the sentencing hearing, the prosecutor advised the court that defendant made 257 telephone calls to Jane while he was in jail, including on the night before she testified, and he continued to violate the protective order to influence her. The court stated it would not consider evidence that was not introduced at trial.
The court stated it had read the probation report and the letters submitted by defendant and by other people supporting him. The court rejected defendant's claim that he acted impulsively based on the trial evidence, particularly the text messages defendant sent to Jane, that showed he acted "out of an intent to manipulate, not to do what was best for your family but to do what was best for you."
The court noted that the letters sent in defendant's support asserted he was a role model and not a criminal. The court again disagreed because defendant's conduct was "by definition criminal.... And he knows that probably better than anyone based upon his own educational background. He made every attempt he could to manipulate. In this Court's mind, that makes him more dangerous than many of the people who walk the streets, because he knows better."
The court stated defendant was not eligible for probation except upon unusual circumstances, and found there were no unusual circumstances "that suggest that the interest of justice would be best served by the defendant being placed on a grant of probation."
The court imposed an aggregate term of 13 years.
F. Analysis
Defendant asserts that based on his statements to the probation officer, he made "the threshold preliminary allegations" that triggered the court's mandatory duty under section 1170.9, because he alleged that he committed the offenses in this case "as the result of mental illness stemming from military service," since he "suffered a debilitating back injury in the military, which led to an inability to work and mental health problems" and he was trying to obtain treatment from Veterans Affairs.
Section 1170.9 is mandatory rather than permissive. (People v. Bruhn (1989) 210 Cal.App.3d 1195, 1199.) Section 1170.9 does not become applicable to a case until a person convicted of a crime makes an initial showing that he or she committed the offense as a result of mental health problems stemming from service in the military. (People v. Bruhn, supra, at pp. 1199-1200.)
In this case, the court was aware defendant served in the military. According to the probation report and defendant's statements, he received an honorable discharge as a result of a back injury. However, defendant failed to make a preliminary showing that he suffered mental health problems as a result of his service in the military. While defendant alleged his back injury led to employment and financial problems, and mental health issues, he did not make a preliminary showing that he suffered from mental health problems "stemming" from his service in the military to trigger the court's mandatory duty under the statute. (§ 1170.9, subd. (a).)
Even if defendant made such a showing, the court must consider that circumstance as a factor in favor of granting probation as long as he is "otherwise eligible for probation." (§ 1170.9, subd. (b)(1).) In this case, defendant was presumptively ineligible for probation unless the court found it was an unusual case where the interests of justice would be best served if he was granted probation (§ 1203, subd. (e)(3)). While the court did not address defendant's military service, it made extensive findings that probation was not appropriate given defendant's culpability in this case, particularly his attempts to manipulate the victim. The court was clearly not inclined to grant probation in this case under any circumstances.
Finally, the record indicates that defendant was advised of his possible rights as a military veteran subject to criminal prosecution, failed to pursue the matter and, thus, waived any possible error by the court's failure to address section 1170.9. The minute order for defendant's initial arraignment on August 18, 2016, states: "Military Diversion Advisement Given." During defendant's trial, the court took judicial notice of the entire certified reporter's transcript for the arraignment on August 18, 2016, as part of the parties' trial stipulation that the court advised him of the terms of the criminal protective order on that date; the transcript is part of the appellate record.
At the time of defendant's initial arraignment, he had been charged with five offenses committed on August 13 and 14, 2016: a felony violation of section 273.5, subdivision (a), for punching Jane in the eye; felony assault by means likely to produce great bodily injury for strangling Jane; two felony counts of dissuading a witness from testifying; and misdemeanor infliction of corporal injury to a coparent for slapping her in the ear.
At trial, the court granted the People's request for judicial notice of the August 18, 2016, reporter's transcript because it found the advisement about the protective order was relevant to support the charges based on defendant's subsequent violations of that order.
The certified reporter's transcript for the arraignment shows that defense counsel requested an "OR" or "honor" release because defendant had been honorably discharged from the military and was attending college. The court denied that request and set bail. As stated in the minute order, the court also advised defendant "there are certain provisions of law that specifically apply to those that are veterans or active duty with the U.S. military. If you do qualify for either of those situations, you may file a judicial [council] form that explains those rights and file that with the Court. You should however consult with counsel prior to doing so." The court then advised defendant's attorney: "Counsel, there are Mil-100 forms available if you wanted [defendant] to look at that and then discuss it with counsel prior to his next court date ...."
Judicial Council form MIL-100 fully advises a party in a criminal case of his or her rights as a military veteran, including the provisions of section 1170.9, as set forth above. There is no evidence in the appellate record that defendant filled out this form or otherwise made any requests under either statute.
The entirety of the record shows that the court would not have placed defendant on probation, defendant did not make a threshold showing of eligibility for consideration under section 1170.9, and he was advised of his potential rights under section 1170.9 and failed to pursue the matter.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P. J. /s/_________
DESANTOS, J.