Opinion
B159993.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL BASULTO, Defendant and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jose Manuel Basulto appeals from the judgment entered following a jury trial that resulted in his convictions for inflicting corporal injury upon a spouse or cohabitant, assault with a deadly weapon or by means likely to cause great bodily injury, simple assault, and making criminal threats. Basulto was sentenced to a prison term of five years, eight months.
Basulto contends: (1) the evidence was insufficient to prove cohabitation, an element of Penal Code section 273.5; (2) the trial court erred by admitting expert witness testimony; (3) hospital records were erroneously admitted without proper foundation; (4) the trial court erred by instructing the jury with CALJIC No. 2.50.02; and (5) sentence on counts 4 and 7 should be stayed pursuant to Penal Code section 654. Basulto also requests that we review the record of the trial courts in camera review of peace officer personnel records. We order the judgment modified to reflect that the sentence on count 4 is stayed pursuant to section 654. In all other respects, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence established the following.
Basulto and victim Cynthia Serna had lived together at Sernas house for several months and had a sexual relationship. Serna had a one-year-old son, T.J., fathered by Todd C. Todds mother, Barbara, assisted Serna by providing diapers, food, and clothing for T.J. At the time of trial, Serna had given birth to Basultos child.
On January 21, 2001, Basulto beat Serna with a full-size baseball bat during an argument and stepped on her throat when she fell to the floor. Sheriffs Deputy John Donaldson interviewed Serna at her residence shortly after the attack. Serna described the attack to Donaldson, referred to Basulto as her "boyfriend," and stated that Basulto had been living with her for approximately three months prior to the attack. Serna told Donaldson that Basulto had hit her with a baseball bat a week earlier and had assaulted her during five other incidents. Donaldson observed injuries to Serna consistent with her account.
Serna also told Barbara about the attack. Barbara saw "big bumps on her shins and her arms," and bruises on her face. Barbara took Serna to the hospital emergency room. A pregnancy test revealed that Serna was pregnant with Basultos child.
On May 20, 2001, Basulto again attacked Serna, who was by that time six months pregnant. Serna was preparing food for T.J. and Basulto asked her to make him lunch as well. He became angry when Serna served him hot dogs. After throwing a hot dog at her, he beat her head and face with closed fists, hit her right leg with a hammer, beat her with a three-foot long, solid wood "Indian flute," attempted to kick her in the stomach, and finally choked her, causing her to urinate and nearly lose consciousness. Serna was holding T.J. during the attack. Basulto stated, "Say goodbye to your son, youre going to die." Serna was afraid Basulto would "kill her and the baby."
Serna telephoned Barbara and told her that Basulto had beaten her again. Barbara asked why Serna had "let him back." Serna responded that she loved Basulto, and that they planned to marry and move to Oregon. Serna described the attack to Sheriffs Deputy Colleen Pompa and stated that "her boyfriend" had inflicted the injuries. Pompa observed "major" injuries to Serna consistent with her account of the attack.
Serna also told Detective Anthony Gonzalez that Basulto had beaten her in both the January and May incidents. However, she did not want Basulto to be prosecuted because he was no longer bothering her and she was pregnant with his child. She stated she would not testify against Basulto.
At trial, Serna admitted telling others that Basulto had beaten her, but stated that she had lied because she was "mad" at Basulto because he refused to believe she was pregnant. The injuries observed in January and May had been inflicted when she was in fights with other women.
2. Procedure.
Trial was by jury. Basulto was convicted of two counts of inflicting corporal injury upon a spouse or cohabitant (§ 273.5, subd. (a)), three counts of assault with a deadly weapon or by means likely to produce great bodily injury (§ 245, subd. (a)(1)), simple assault (§ 241), and making criminal threats (§ 422). The trial court sentenced Basulto to a term of five years, eight months in prison. It also imposed restitution and parole revocation fines. Basulto appeals.
DISCUSSION
1. The evidence was sufficient to prove Basulto and the victim were cohabitants.
When determining whether the evidence was sufficient to sustain a conviction, "our role on appeal is a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "[T]he test of whether evidence is sufficient to support a conviction is `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.]" (People v. Holt (1997) 15 Cal.4th 619, 667.) "`"[T]he power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible."" (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that "`upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In order to establish a violation of section 273.5, the people must prove the defendant, at the time of the attack, was the current or former spouse or cohabitant of the victim or the parent of the victims child. "Cohabitation" is defined as unrelated persons "living together in a substantial relationship — one manifested, minimally, by permanence and sexual or amorous intimacy." (People v. Holifield (1988) 205 Cal.App.3d 993, 1000; People v. Moore (1996) 44 Cal.App.4th 1323, 1330, 1332-1333.) A "platonic, rooming-house arrangement" is not enough. (People v. Holifield, supra, at p. 999.) "Cohabitation" has been broadly interpreted and does not require evidence of a "quasi-marital" relationship. (People v. Moore, supra, at p. 1333.)
Section 273.5 provides in pertinent part, "Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony . . . ."
The defendant and the victim need not live together continuously to qualify as cohabitants within the meaning of section 273.5. "The element of `permanence in the definition refers only to the underlying `substantial relationship, not to the actual living arrangement." (People v. Moore, supra, 44 Cal.App.4th at p. 1334.) Indeed, a defendant "may cohabit simultaneously with two or more people at different locations, during the same time frame, if he maintains substantial ongoing relationships with each and lives with each for significant periods." (Id. at p. 1335.)
For example, in People v. Holifield, supra, 205 Cal.App.3d 993, the defendant did not pay rent on, or have a key to, the motel room where the victim had lived for approximately one year. The victim and defendant had been seeing each other off and on for four years. During the three months before the attack, the defendant stayed intermittently with the victim, but stayed in at least three other locations for weeks at a time. He took his possessions with him whenever he left the victims motel room. The couple did not make joint purchases, have a joint bank account, or spend much free time together. They had infrequent sexual relations. The victim claimed she and the defendant were friends or roommates, and were not intimate. (Id. at pp. 995-996, 1002.) On these facts, the evidence was sufficient to prove cohabitation, because the jury could have found an ongoing relationship of "`some permanency," characterized by "an intimacy going well beyond that of ordinary roommates." (Id. at p. 1002.)
Here, the evidence was sufficient to prove Basulto and Serna were cohabitants at the time of the first attack, and were former cohabitants for purposes of proving the second attack. Deputy Donaldson testified that Serna stated that she had been assaulted by her boyfriend, Basulto, "whom she lived with" for the preceding three months. This was a sufficient period of time to support a finding of cohabitation. (E.g., People v. Holifield, supra, 205 Cal.App.3d at p. 1002 [evidence sufficient to support cohabitation element where, inter alia, the defendant had lived with the victim "half or more of the three months preceding the assault and had no other regular place to stay."].) Barbara testified that Serna stated she and Basulto "were going to get married and move to Oregon" and that she loved Basulto. This evidence of the victims romantic feelings toward Basulto and their apparent plans to marry also supported the finding of cohabitation. The pair had sexual relations, evidenced by Sernas pregnancy. Even if the jury credited Sernas trial testimony that they did not engage in sex more than a few times, this fact does not preclude a finding of cohabitation. (People v. Ballard (1988) 203 Cal.App.3d 311, 319 [a finding of cohabitation does not require a finding of a sexual relationship].) Serna repeatedly referred to Basulto as her boyfriend to deputies and hospital personnel. (See People v. Holifield, supra, at p. 1002 [infrequent sexual relations and victims unreturned romantic feelings for defendant showed intimacy "going well beyond that of ordinary roommates"].) The evidence was sufficient. (E.g., People v. Ballard, supra, at pp. 314, 317 [evidence proved cohabitation where victim testified that, although defendant had his own apartment, the pair had lived together for two years, were together a lot, and shared a bed]; People v. Moore, supra, 44 Cal.App.4th at p. 1335 [cohabitation proved although defendant lived with and began relationships with others as well as the victim].)
Basulto argues that neither Deputy Donaldson nor Barbara saw evidence that he was living in the house. Moreover, Basultos brother, Frank, testified that he had been to Sernas house many times but never saw Basultos belongings; to the best of his knowledge, Basulto was not living with Serna; and in January 2001, Basulto was living with a cousin. Serna testified that she and Basulto were not dating, "didnt really have a relationship," and "basically were just having lots of fun."
Basultos arguments amount to nothing more than a request that this court reweigh the evidence. This is not the function of an appellate court. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139; People v. Palma (1995) 40 Cal.App.4th 1559, 1567.) Evidence is not deemed insufficient merely because contrary evidence was also presented. "Conflicts and even testimony subject to justifiable suspicion do not justify a reversal, for it is the exclusive province of the trier of fact to determine the credibility of a witness." (People v. Duncan (1981) 115 Cal.App.3d 418, 429; People v. Mobley (1999) 72 Cal.App.4th 761, 788.) Additionally, the fact that Donaldson and Barbara did not see Basultos belongings at the residence did not prove Basulto was not living there. Donaldson stated that he had not looked for mens clothing or mail addressed to Basulto in the house, and performed only a cursory search for the baseball bat. Barbara testified that "[n]ormally when I went over we just stood outside and talked." Therefore it is not surprising that these witnesses failed to observe Basultos belongings at the residence.
2. The domestic violence experts testimony was properly admitted.
Basulto contends that "the expert witness was not properly qualified to give an opinion on situational ethics." This contention lacks merit.
a. Additional facts.
Jeri Darr testified as an expert on domestic violence. She had been employed as a program manager by the Antelope Valley Domestic Violence Counsel and was a consultant on the issues of victim intervention and multidisciplinary team creation. She had also worked as a counselor for adult victims of domestic violence. She had trained law enforcement authorities on domestic violence. She had counseled or worked in victim intervention with approximately 2,000 domestic violence victims over the seven years prior to trial. She had a bachelors degree in social welfare and was a candidate for a masters degree in public health, and her area of interest and special expertise was interpersonal violence prevention. She had testified in court as an expert in the field of domestic violence on between 15 to 20 occasions.
Among other things, Darr testified that it was common for domestic violence victims to recant. She also testified about the reasons why domestic violence victims recant and explained that domestic violence victims often move from one abusive relationship to another. At various points during her testimony, Darr referred to the experiences, perceptions, and views of non-victims, as opposed to domestic violence victims, using the pronouns "you," "I," "we," or "us." For example, at one point during direct examination, the prosecutor queried, "All right. . . . We are turning to situational ethics. And basically does a victim understand that when she comes into court and takes an oath, swears to tell the truth, and then for lack of a better word lies about it that thats wrong; that thats not something that they should do?" Defense counsels lack of foundation objection was overruled. Darr explained that domestic violence victims erroneously believe they can call the police but then choose not to prosecute the crime, and testify falsely in court because they fear the ramifications of the prosecution, including fear they their or their childrens lives will be ruined. Darr stated, "A recalcitrant victim is lying . . . is making a choice that you and I wouldnt make because theyre vested differently than we would be." When asked to further elaborate, Darr explained, "This relationship continues to be the center of the universe. They use this relationship to validate their very worth. For those of us who dont do that, we understand right and wrong; we understand the appropriateness of truth telling versus lying, but [domestic violence victims] entire universe is vested in this individual for however long a period of time they have been together, or whatever is going on in that victims mind in terms of future behaviors and future relationships . . . ." Darr explained that a domestic violence victim worries "if he goes to jail how am I going to feed the kids? What am I going to do, you know, with his family? How am I going to keep a roof over our head? Where am I going to go? What is going to happen to me? Whos going to love me?"
Basulto points to the following excerpts from Darrs testimony:
"[Prosecutor]: Well, dont they know if theyre being hit with a baseball bat that thats not normal; that thats not something that should be happening to them? [¶] "[Darr]: Not necessarily. I think that thats an assumption that we make because we have different reference points for what is healthy and unhealthy. What seems logical to us because we have — weve been given a different set of values about what love is and about what a healthy relationship is oftentimes victims of domestic violence have never experienced relationships free of violence. So you have got nothing to compare it to. You go with what you know, not to be minimizing about it or be flip about it, but its a relationship that if you have never had a violence-free relationship then you wouldnt know that thats normal."
"[Prosecutor]: But doesnt the level of abuse — I mean, three broken ribs, youre telling us its not enough to convince the woman that somethings wrong here, that this is an abusive relationship and they need to get some help, or being hit with a baseball bat? [¶] [Darr]: Oftentimes its not. There are many times when victims believe because they — these are individuals who lack self-esteem; these are individuals who inherently dont like themselves because when you like yourself you dont let people beat you with a bat or a hand or anything else. So were talking about people who need to be validated, and oftentimes victims of domestic violence seek out relationships because that lets them know that theyre good people whereas you and I can know that were good in spite of our flaws because obviously we all have flaws; were good people. These people believe that they are their flaws. These are individuals who are not embarrassed by their actions; theyre embarrassed by their very being, and they seek out others to validate, to let them know that they are good human beings. [¶] . . . [Prosecutor]: This [pattern of behavior] is not something thats inherent, youre not born with this. Did you say that earlier? [¶] [Darr]: Its been my experience and within my academic training as a . . . public health educator, that violence is a learned behavior. We dont come into the world knowing how to be violent. Thats something that we learn, and over the years as I have worked with victims I have found some commonality in them . . . either they witnessed their parents or their mother and her significant other abusing one another where they were not physically abused as children; where there were not incidents of incest or molestation in the family; where there was not substance abuse in the family or there was not some type of emotional abandonment in the family. [¶] Again, when we have healthy self-esteem and when we . . . have a good self-concept we dont find ourselves in these relationships. People who are abusive are repelled by that. Its like oil and water; its like two magnets that just push each other away. So there are some things that will set the stage for this type of behavior later on in life."
"[Prosecutor]: [A]fter shes been beaten five times, six times in, doesnt it sink in that this is never going to change and that . . . this person is also going to abuse me? [¶] [Darr]: It [ ] varies from person to person. I have read studies that have suggested that the average domestic violence victim leaves and returns to their relationship five times. [They have been] battered an average of three times before law enforcement or before anybody even knows that there is a problem. That[] . . . [is] clouded in a tremendous amount of shame and a tremendous amount of secrecy. Leaving is a process like it is for any relationship, the dissolution of any relationship is a process. Very rarely do we all just wake up one day and say, `Okay. Im done. See you later. Thanks for coming. Its been fun. Even though we know that its bad, theres a process that has to go on in terms of mourning and grieving and all the things that we do, domestic violence [victims] do that, too. So the process is not different for them. The stakes are a little bit higher in terms of their safety than they are for those of us who are not engaged in our relationships."
b. Discussion.
Basulto concedes that Darr qualified as an expert on domestic violence, and does not challenge that she "properly offered her opinion that it was common for victims of domestic violence to change their stor[ies] between the incident and the trial." However, he complains that her testimony about how "`we, `us, and `you and I" would behave was not properly admitted because Darr was "not properly qualified to render opinions on those subjects." We disagree.
First, Basulto did not object to the challenged testimony. His sole objection was interposed on lack of foundation grounds to a question that did not elicit testimony he now cites as objectionable. Therefore his contention is waived. (Evid. Code § 353, subd. (a) [to preserve issue for appeal, objection must "make clear the specific ground of the objection or motion"]; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1734-1735; People v. Valdez (1997) 58 Cal.App.4th 494, 505 [failure to make specific objection as to scope of expert testimony waived claim of error.].)
In any event, Basultos argument fails. "`A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (People v. Davenport (1995) 11 Cal.4th 1171, 1207.) A trial court has considerable latitude when determining the qualifications of an expert witness, and its ruling will not be disturbed on appeal in the absence of a manifest abuse of discretion. (Id. at p. 1207; People v. Bolin, supra, 18 Cal.4th at pp. 321-322.)
Websters Dictionary defines "situation ethics" as "a system of ethics by which acts are judged within their contexts instead of by categorical principles." (Merriam- Websters Collegiate Dictionary (10th ed. 1996) p. 1098, col. 1.) Despite the prosecutors reference to situational ethics, Darr did not testify on the tenets of a particular philosophical system. Instead, she simply explained the differences between the conduct and perceptions of victims of domestic violence, as compared with persons who were not similarly victimized. This testimony was well within the scope of her expertise.
Moreover, Basulto fails to explain how the cited portions of Darrs testimony were prejudicial. (People v. Prieto (2003) 30 Cal.4th 226, 247 [standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 governs erroneous admission of expert witness testimony].) Basultos argument on this point is conclusory. The thrust of the cited portions of Darrs testimony was to establish (1) that domestic violence victims often recant — a topic Basulto concedes she was qualified to address; and (2) the reasons domestic violence victims stay in abusive relationships. Both these areas were within Darrs area of expertise. Darr could have made these same points without using the pronouns "we," "I," "us," and "you." Even assuming arguendo that Darrs word choice was somehow improper, we discern no prejudice to Basulto.
3. The victims hospital records were properly admitted.
During trial, emergency room nurse Timothy Joyce testified regarding various hospital records prepared in connection with Sernas January 2001 emergency room visit, including a registration form, care instructions, intake or triage notes, notes prepared by Joyce, notes prepared by a physician, and a diagnostic X-ray report. The trial court admitted the documents as business records pursuant to Evidence Code section 1271. Basulto contends this was error.
Hospital records may be admitted as business records under Evidence Code section 1271. (People v. Diaz (1992) 3 Cal.4th 495, 535 [as a general rule, it is well established that "`hospital records are business records and as such are admissible if properly authenticated."].) Evidence Code section 1271 provides that a document is admissible as a business record if: (1) it was made in the regular course of a business; (2) at or near the time of the act, condition, or event; (3) the custodian or other qualified witness testifies to its identity and mode of its preparation; and (4) the sources of information and method and time of preparation were such as to indicate its trustworthiness.
A trial court has wide discretion in determining whether sufficient foundation has been laid to qualify evidence as a business record, and its ruling will be overturned on appeal only upon a clear showing of abuse. (People v. Beeler (1995) 9 Cal.4th 953, 978-979; People v. Lugashi (1988) 205 Cal.App.3d 632, 638-639; cf. People v. Martinez (2000) 22 Cal.4th 106, 119-120.)
Here, emergency room nurse Joyce testified as follows. He had worked at the Antelope Valley Hospital, where Serna was treated, for 12 years. His job duties included treating patients who appeared at the emergency room for care. He was familiar with the emergency room records at the hospital, including the methods used in their preparation. Emergency room records were kept in the usual course of business. Joyce had been working in the emergency room on January 22, 2001, when Serna was treated. He identified Sernas medical records.
A registration form is prepared by registration staff when a patient first arrives at the hospital, from information the patient provides regarding insurance and personal information. A section in Sernas registration form, entitled "Accident information," contained a notation, "Beat up by boyfriend." This information would have been included based upon Sernas statements to the registration clerk.
When a patient enters the emergency room, she is evaluated by the triage nurse, who prepares notes. Those notes come from information provided by the patient. In Sernas case, the triage notes contained a statement, "Complained of being assaulted by boyfriend yesterday," and noted bruises to Sernas legs, arm, and eye, as well as "other marks per patient" that were not visible to the triage nurse.
The records also contained notes prepared by Joyce, that reflected his evaluation of Serna. Joyce had noted, "was struck repeatedly last night with a baseball bat." That information reflected "the verbal response of the patient and I write down what they tell me in quotation marks." Joyce performed an evaluation of Serna and noted, based upon his observations, that Serna had bruising to the eye area, leg, and arm. Serna complained of pain in her little finger, jaw, legs, and ribs. A pregnancy test, performed by Joyce, was positive.
Another form documented a physicians evaluation of the patient, and was filled out by the physician based upon his observations of the patient. The physician noted bruising on Sernas legs, little finger, and palm and prescribed a splint. Notations indicating, "Ex-boyfriend assaulted patient. Hit with baseball bat multiple times all over entire body" and the time of the assault, would have been completed by the doctor based upon information provided by Serna. Likewise, the physician noted Sernas complaints of ringing in the ears, nausea, and a cut, based upon Sernas statements to him.
Joyce also identified X-ray reports, which showed "no findings" other than a fracture of Sernas finger, which was caused by bending the finger backward with force. Aftercare notes indicated a prescription for Tylenol with codeine and a finger splint.
The trial court found that Joyce was an "otherwise qualified person" for purposes of Evidence Code section 1271, based upon Joyces employment history with the hospital and familiarity with the documents involved and the hospitals procedures. Over Basultos objection, the trial court admitted the medical records as business records under Evidence Code section 1271.
We discern no error. As explained, Joyces testimony established that the hospital records were prepared in the usual course of business, at or near the time Serna visited the hospital. Joyce had worked at the hospital for many years and was familiar with the documents in question. He explained who prepared the documents, and testified to the sources of information used. The sources of information — observations by medical personnel, and information provided by the victim — were trustworthy. Likewise, the method and time of preparation indicated trustworthiness, in that the records were prepared in accord with usual hospital procedure by unbiased persons. (People v. Dorsey (1974) 43 Cal.App.3d 953, 961 [foundational requirements of Evidence Code section 1271 may be inferred from the circumstances]; People v. Williams (1973) 36 Cal.App.3d 262, 275 [foundation for admitting business record is laid if in trial courts opinion, the sources of information, method and time of preparation were such as to justify admission].) Basulto points to nothing in the record persuading us that the records were not trustworthy.
Basulto argues that an insufficient foundation was laid because Joyce was did not personally complete most of the documents and was not present when most of the documents were prepared. However, as Basulto concedes, the individual who gathered the information is not required to testify as long as there is evidence about the mode of preparation of the documents and the source of the information. (People v. Matthews (1991) 229 Cal.App.3d 930, 940, distinguished on other grounds in People v. Martinez, supra, 22 Cal.4th at p. 119.) That requirement was satisfied here. If accepted, Basultos argument that only persons who personally prepared, or who were present when another prepared, documents in a hospital file would undermine the purpose of the business records exception. (People v. Matthews, supra, 229 Cal.App.3d at p. 940 ["`It is the object of the business records statutes to eliminate the necessity of calling each witness, and to substitute the record of the transaction or event. It is not necessary that the person making the entry have personal knowledge of the transaction. [Citations.]"]; County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1451.)
Because we conclude the trial court properly admitted the hospital records, we need not reach the Peoples contention that admission of the records, even if error, was not prejudicial.
4. Instruction with CALJIC No. 2.50.02 was proper.
As described supra, evidence was adduced at trial that Basulto had committed uncharged domestic violence against Serna prior to the charged attacks. The trial court instructed with the 2000 revision of CALJIC No. 2.50.02, which informed the jury that if it found Basulto had committed a prior offense involving domestic violence, it might, but was not required to, infer that Basulto had a disposition to commit the charged crime. However, such evidence was not, by itself, sufficient to prove commission of the charged crime beyond a reasonable doubt.
CALJIC No. 2.50.02 provided, in pertinent part: "Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in the case. [& para;] . . . [¶] If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit other offenses involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offense. The weight and significance, if any, are for you to decide. [¶] You must not consider this evidence for any other purpose."
Basulto asserts that use of this instruction was error. He contends that CALJIC No. 2.50.02 lessened the Peoples burden of proof and allowed the jury to find him guilty based solely upon his commission of uncharged incidents of domestic violence. He complains that "CALJIC No. 2.50.02 gave the jury the authority to find appellant guilty if they were satisfied beyond a reasonable doubt, or any standard greater than a preponderance of the evidence, that he had previously committed acts of domestic violence." This purported error, he contends, was exacerbated by the fact that CALJIC No. 2.50.2, which defined preponderance of the evidence, followed CALJIC No. 2.50.02. Therefore, he urges, use of the instruction violated his due process rights.
The People urge that Basulto has waived this claim because he failed to object to the instruction below. We disagree. (§ 1259 ["The appellate court may . . . review any instruction given . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."]; People v. Hillhouse (2002) 27 Cal.4th 469, 505-506; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [to determine whether a defendants substantial rights were affected, appellate court must examine the merits of the claim at least to the extent of ascertaining whether error was prejudicial].)
Basultos arguments are foreclosed by the recent case of People v. Reliford (2003) 29 Cal.4th 1007, which was decided after he filed his opening brief. In Reliford, the California Supreme Court approved CALJIC No. 2.50.01, a substantively identical instruction addressing the jurys consideration of prior sex crimes evidence. (Id. at p. 1009.) Reliford rejected the same argument raised here. It held that inferences that a defendant who has committed other sex crimes has a disposition to commit such crimes, and that because of this disposition the defendant was likely to have committed the charged offense, were legitimate. (Id. at p. 1013.) It rejected the argument that the instruction improperly lessened the prosecutions burden of proof. (Id. at p. 1015.) Reliford explained, "We likewise reject defendants contention that the instruction `implies by way of a negative pregnant that prior sex offenses proved beyond a reasonable doubt are indeed sufficient to prove the present offense beyond a reasonable doubt. . . . [N]o juror could reasonably interpret the instructions to authorize conviction of a charged offense based solely on proof of an uncharged sexual offense. It is not possible, for example, to find each element of the charged crimes, as the jury was instructed to do before returning a guilty verdict, based solely on the [uncharged] offense. Nor is it possible to find a union or joint operation of act or conduct and the requisite intent for each charged crime, as the jury was also instructed to do. Hence, no reasonable jury could have been misled in this regard. [Citation.]" (People v. Reliford, supra, at p. 1015.) Reliford also rejected the notion that CALJIC No. 2.50.01 might be interpreted by jurors to authorize a conviction based upon the preponderance of the evidence standard. (Id. at p. 1016.)
Here, as in Reliford, Basultos jury was instructed that it should consider the instructions as a whole and each in light of the others (CALJIC No. 1.01); that a guilty verdict required a union or joint operation of act or conduct and the requisite intent for the charged crimes (CALJIC Nos. 3.30, 3.31); and about the elements of each charged offense, and that a conviction required proof of each element. For the reasons stated in Reliford, we conclude the use of CALJIC No. 2.50.02 was not error.
5. Section 654 stay.
Basulto was convicted of five offenses occurring on May 20, 2001: count 3, inflicting corporal injury on a cohabitant; count 4, simple assault; counts 5 and 6, assault with a deadly weapon or by means likely to cause great bodily injury; and count 7, criminal threats, based upon Basultos threat to kill Serna, made while he was choking her. The trial court stayed sentence on counts 5 and 6, pursuant to section 654. It imposed a one year sentence on count 3, representing one third of the midterm; a concurrent sentence of six months in jail on count 4; and a consecutive term of one year, representing one third of the midterm, on count 7. It stated that it was imposing a consecutive term for the criminal threats offense because "that is also a separate threat to the victim in this case."
Basulto contends punishment on both count 7, criminal threats and count 4, misdemeanor assault, should have been stayed pursuant to section 654, because these offenses were committed with the same intent and objective as in count 3, inflicting corporal injury upon a cohabitant. He asserts that all three offenses occurred because he was unhappy with the lunch Serna had prepared. We agree that the concurrent six month jail sentence imposed on count 4 should have been stayed pursuant to section 654. However, the imposition of sentence on count 7 was proper.
Section 654, subdivision (a), provides in pertinent part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 therefore "`precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts. "Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor." [Citations.] "[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." [Citation.] [Citation.]" (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.) However, if the defendant harbored "multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Alvarado (2001) 87 Cal.App.4th 178, 196.)
Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Its findings will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins, supra, at p. 1312; People v. Herrera, supra, at p. 1466.) We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Hutchins, supra, 90 Cal.App.4th at pp. 1312-1313.)
Basulto is correct that sentence on count 4, misdemeanor battery, should have been stayed pursuant to section 654. Indeed, the court seems to have so found. During the sentencing hearing defense counsel argued "counts 3 through 7 would merge under 654 as theyre all the same acts. Maybe not [count] 7, but all of the other acts are incorporated on the same date and basically the same act." After brief further discussion, the trial court stated, "I think we agree except with respect to count 7. I think count 7 is a separate crime." However, when the court pronounced sentence on count 4, it imposed an unstayed concurrent sentence.
The assault and infliction of corporal injury upon Serna occurred at the same time, during the same incident, and encompassed the same conduct. Basultos intent and objective in both offenses was to inflict physical harm upon Serna. There is no evidence from which the trial court could have concluded Basulto had distinct intents motivating the assault and corporal injury offenses.
When multiple punishment is precluded by section 654, both concurrent and consecutive sentences are prohibited. (People v. Deloza (1998) 18 Cal.4th 585, 592.) The proper procedure is to impose sentence on the offenses, and stay execution of sentence on the offenses carrying the lesser penalty, with the stay to become permanent when service of the greater sentence is complete. (People v. Austin (1994) 23 Cal.App.4th 1596, 1614, overruled on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861, 867; People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) Therefore, we order sentence stayed on count 4 pursuant to section 654.
The conviction for making criminal threats, however, presents a different situation. People v. Solis, supra, 90 Cal.App.4th 1002, is instructive. In Solis, the defendant left messages on the victims answering machine, stating that he was on his way to kill them and burn their apartment. The victims left their apartment and, when they returned approximately one hour later, the apartment was on fire. The defendant was convicted of both arson and making terrorist threats. On appeal, Solis held that section 654 did not bar the imposition of sentence on both crimes. It reasoned, "defendant left several threatening messages. An hour later, he set fire to the victims apartment. This chronology indicates the crimes were divisible. In addition, they had distinct objectives: in making the terrorist threats, the defendant intended to frighten whereas in committing arson an hour later the defendant intended to burn. Because defendant committed multiple and divisible acts with distinct objectives, section 654 was not violated by sentencing him on both the arson and terrorist threat convictions." (Id. at p. 1022.)
The same is true here. The threat and the physical attack on Serna occurred simultaneously, but were two different actions undertaken with different objectives, i.e., beating Serna and threatening her. Basultos intent when beating Serna was to physically injure her. His intent when threatening to kill her was to frighten her. (People v. Solis, supra, 90 Cal.App.4th at p. 1022; cf. People v. Nelson (1989) 211 Cal.App.3d 634, 638-639; People v. Herrera, supra, 70 Cal.App.4th at p. 1467.) An element of the criminal threats offense was that Serna had the specific intent that his statement be taken as a threat, and the jury was so instructed. (§ 422; People v. Solis, supra, 90 Cal.App.4th at pp. 1023-1024.) No such intent was an element of Basultos conviction for infliction of corporal injury upon a cohabitant. Viewing the evidence in the light most favorable to the judgment (People v. Cleveland, supra, 87 Cal.App.4th at p. 271;People v. Herrera, supra, 70 Cal.App.4th at p. 1466), there was sufficient evidence in the record from which the trial court could have found separate, albeit simultaneous, intents existed. Although in the instant matter, unlike in Solis, the two crimes were not separated in time by an hour, it is the defendants intent and objective, not the temporal proximity of the crimes, that is determinative. (E.g., People v. Harrison (1989) 48 Cal.3d 321, 335; People v. Herrera, supra, 70 Cal.App.4th at p. 1466.)
6. Trial courts in camera review of peace officer records.
Prior to trial, Basulto moved pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, for discovery of past complaints made about any incidents evidencing moral turpitude, including making false police reports or declarations, committing perjury, and coercing false statements or confessions, by deputies Pompa, Gonzalez, and Donaldson. At a January 30, 2002 hearing on the motion, the trial court found the motion established good cause for an in camera review on the requested categories.
Basulto initially sought information pertaining to complaints about the deputies use of excessive force, but withdrew this request at the Pitchess hearing.
Basulto requests that we review the sealed record of the trial courts Pitchess review to determine whether the trial court abused its discretion by failing to order disclosure of information. Trial courts are vested with broad discretion when ruling on motions to discover peace officer records (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832), and we review a trial courts ruling for abuse. (People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Hughes (2002) 27 Cal.4th 287, 330.) We have reviewed the sealed transcript of the in camera hearing conducted on January 30, 2002. That transcript constitutes an adequate record of the trial courts review of any document(s) provided to it, and reveals no abuse of discretion.
DISPOSITION
The judgment is modified to stay sentence on count 4 pursuant to section 654. In all other respects, the judgment is affirmed.
We concur: KLEIN, P.J. and CROSKEY, J.