Opinion
A149053
11-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES FREDERICK BOWEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-661648)
I.
INTRODUCTION
Appellant James Bowen appeals his convictions for battery and inflicting corporal injury on his girlfriend, Jane Doe. He argues the court failed to instruct the jury about the application of instructions on self-defense and defense of property to the lesser included offense of battery. He further argues the court should have instructed the jury on his right to eject a trespasser from his real property (here, a vehicle). We conclude Bowen has forfeited the argument about the jury instructions application to the lesser included offense, and in any event, the claim fails on the merits. We also conclude that the court properly refused to provide an instruction on defense of real property against a trespasser. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The Sonoma County District Attorney's Office charged Bowen in a three-count amended information with: (1) inflicting corporal injury on his girlfriend on February 9, 2015, in violation of Penal Code section 273.5, subdivision (a) (Count One); (2) misdemeanor battery of his girlfriend on November 13, 2014, in violation of section 243, subdivision (e)(1) (Count Two); and (3) knowing and willful violation of a protective order in violation of section 166, subdivision (c)(1) (Count Three).
All subsequent references are to the Penal Code unless otherwise identified.
The court conducted a jury trial from July 16 to July 21, 2015.
A. Testimony at Trial
Jane Doe testified she and Bowen became romantically involved in 2011. They began living together and ultimately moved into Jane Doe's car in late 2014. Jane Doe described their relationship as "survivalistic."
On November 13, 2014, Jane Doe and Bowen got into an argument while parked at Walmart in Rohnert Park. Jane Doe was throwing Bowen's belonging from the car and throwing items at Bowen. Bowen ultimately pushed Jane Doe out of the driver's seat of the car. Jane Doe ended up face down on the ground outside the car. Bowen then got out of the car and pulled the rest of Jane Doe's body from the car. Jane Doe attempted to get back into the car but Bowen prevented her by pulling her further away from the car. Jane Doe walked away to stand in front of a store, but she and Bowen continued to argue. A bystander called 911. Police officers arrived and arrested Bowen.
Shortly thereafter, they continued their relationship and resumed living in the car together. Jane Doe began to reside elsewhere and transferred ownership of the car to Bowen with the understanding she thereafter could stay in the car if she needed a safe place.
On February 9, 2015, Jane Doe was at the Graton Casino in Rohnert Park with a different boyfriend. She ran into Bowen and asked if she could sleep in the car. Bowen gave her the car keys. She slept in the car for a couple hours, but when Bowen returned, they began to argue. Bowen wanted Jane Doe to leave the car. Jane Doe admitted yelling and throwing items in Bowen's direction. According to Bowen, she repeatedly punched him in the back of the head. Jane Doe was in the back of the car and when Bowen began to drive the car, she took a bag with most of Bowen's possessions and threw it from the car. Bowen stopped the car abruptly and Jane Doe tumbled into the front seat.
Bowen came around to the passenger side of the car, opened the door, and yelled for Jane Doe to get out of the car. When Jane Doe resisted getting out of the car, Bowen grabbed her and she fell from the car. Her head either hit the door or hit the pavement. Bowen returned to the car and drove away. Jane Doe had a contusion on her head above her right eye and was taken by ambulance to the hospital.
Bowen testified that in removing Jane Doe from the car, he was acting in self-defense and protecting his property.
Jane Doe and Bowen continued to see each other periodically after the casino incident. On March 23, 2015, Bowen let Jane Doe stay in the car because she was pregnant and had nowhere else to go. Jane Doe and Bowen were both sleeping in the car when they were approached by law enforcement. The officer ran a records check and discovered there was a domestic violence restraining order against Bowen and Jane Doe was the protected party.
B. Jury Instructions
During trial, defense counsel requested an instruction on self-defense and the court agreed to provide it. Defense counsel then requested an instruction that Bowen was entitled to eject a trespasser from his real property. The prosecutor objected because the model instruction, CALCRIM No 3475, applied to a trespass onto real property or land. Defense counsel argued that the car was Bowen's home and he could eject a trespasser from it.
The court agreed with the prosecution that "our classic understanding" of a home would not encompass a vehicle, but noted that in this case the car was Bowen's home. However, the court was concerned that the instruction was meant to apply to real property, and a car is not real property. Even assuming the car could constitute property contemplated by CALCRIM No. 3475, the court doubted whether Jane Doe could be defined as a trespasser because Bowen gave her the keys and permission to use the car. The court stated: "I don't believe, simply because it's a car, prevents instruction with regard to this type of consent. But I believe [CALCRIM] No. 3475, with both the definition of real property, but also perhaps even more important, the requirement that you're dealing with a trespasser, that it simply wouldn't fit the evidence."
The court instructed both parties to brief the issue. In the meantime, the court agreed to provide CALCRIM No. 3476 regarding the defense of personal property.
At a hearing the following day, the court heard argument from both counsel. The prosecutor stated that he could not find any cases discussing whether a car could be considered a home. The prosecutor argued, in any event, this was not a trespass case because Jane Doe was given access to the car. CALCRIM No. 3476 was the more appropriate instruction because Bowen was defending his personal property.
The court concluded that a vehicle could qualify as a home when a person was living in it, but Jane Doe was not a trespasser within the meaning of CALCRIM No. 3475. Personal property and chattel, including the car, were covered under CALCRIM No. 3476.
Defense counsel drafted a proposed substitute instruction to CALCRIM No. 3475, replacing the word "trespasser" with the word "individual." The court concluded that removing an individual from real property was not the same as removing a trespasser, and found that the instruction was not appropriate in this case given the facts presented. The court stated that the self-defense instruction and the instruction on defense of personal property more appropriately and sufficiently addressed the factual and legal issues in this case.
The court instructed the jury on corporal injury and the lesser included offense of battery generally. As part of the instruction on battery, the court stated the People must prove that "the defendant did not act in self-defense or in defense of someone else."
C. Jury Verdict and Sentence
The jury found Bowen not guilty of felony infliction of corporal injury to a girlfriend under section 273.5, subdivision (a), but found him guilty of the lesser included offense of battery under section 242 (Count One). The jury also found him guilty of battery against a girlfriend (Count Two), and guilty of violating a protective order (Count Three). The court suspended sentencing and placed Bowen on 36 months of formal probation.
III.
DISCUSSION
A. Bowen Forfeited His Claim That the Trial Court Improperly Instructed on Self Defense and Defense of Property and, in Any Event, the Instructions Were Not Erroneous
Bowen argues that when the court provided the requested instructions on self-defense and defense of property, it did not specifically instruct the jury that these defenses also applied to the lesser included offenses of battery. Thus, Bowen does not argue the instructions were incorrect; rather, he contends they were incomplete.
Respondent argues Bowen has forfeited his claim because it was not raised before the trial court. We agree. "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]" (People v. Lang (1989) 49 Cal.3d 991, 1024, abrogated on other grounds, People v. Diaz (2015) 60 Cal.4th 1176.) In People v. Grimes (2016) 1 Cal.5th 698, 723, the defendant argued that the court's instructions on circumstantial evidence could cause the jury to believe that the same principles did not apply to direct evidence. Our Supreme Court held that the trial court's instructions were correct and defendant failed to request any modification so he had forfeited the claim on appeal. (Ibid.)
We further reject the claim on the merits. As to Count One, the jury found appellant not guilty of felony corporal injury to Jane Doe, but found him guilty of the lesser offense of battery. In instructing the jury on the separate charge of battery against a girlfriend (Count Two), the court stated that the prosecution must prove "the defendant did not act in self-defense or in the defense of someone else."
"[W]e must view a challenged portion 'in the context of the instructions as a whole and the trial record' to determine ' "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'. . ." (People v. Reliford (2003) 29 Cal.4th 1007, 1013, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.)
We presume the jury followed its instructions. (People v. Adcox (1988) 47 Cal.3d 207, 253 [absent a contrary indication in the record, we assume the jury followed the instructions given by the court].) The jury was instructed on both self-defense and defense of property, and neither the court's instruction nor the parties' arguments limited this to the charged battery offense (Count Two) barring application to the lesser included offenses of simple battery. The jury was instructed regarding the definition of battery on a girlfriend charged in Count Two that "the defendant willfully and unlawfully touched Jane Doe in a harmful or offensive manner." The jury was specifically instructed that to find battery, it must conclude Bowen did not act in self-defense or defense of another. The jury was instructed that simple battery was a lesser included offense of both Count One and Count Two.
Both parties addressed the defenses in their closing arguments. Defense counsel argued there was strong evidence Bowen was acting in self-defense on both occasions. Counsel stated: "[W]hen you look at the self-defense instruction . . . Instruction [No.] 3470 . . . if a person . . . believe[s] they're about to be battered, or someone's about to apply force to them, they have the right to defend themselves." Defense counsel argued that CALCRIM No. 3476 applied to Count One because Bowen had a right to protect his personal property from imminent harm. Bowen ejected Jane Doe from the car to protect his personal property.
As to Count One, the prosecutor argued Bowen did not act in self-defense. The prosecutor stated Jane Doe was not hitting Bowen, and if he "felt threatened, felt scared, by Jane Doe, he could have easily parked the car and walked away. This was not self-defense." By finding the lesser included offense of battery, the jury specifically concluded that Bowen did not act in self-defense, and we can presume it also concluded he did not act in defense of his property. As respondent argues, it was an "all or nothing proposition" because Bowen's actions—whether corporal injury or battery—would not be criminal if he was acting in self-defense or in defense of his property.
Given the jury instructions as a whole, the court did not err in failing to sua sponte instruct the jury that the defenses applied equally to the lesser included offenses of simple battery.
Because we conclude that Bowen forfeited his jury instruction claims both by failing to raise them below and they are otherwise meritless, we need not consider his further claim that he was prejudiced under the harmless-beyond-a-reasonable-doubt test for errors that violate the United States Constitution, under Chapman v. California (1967) 386 U.S. 18, 24. --------
B. The Court Properly Refused to Instruct the Jury on Trespass to Home or Real Property
Bowen next argues as to Count One that the trial court failed to instruct the jury that Bowen had the right to remove Jane Doe from the vehicle because she was trespassing.
" 'It is well settled that a defendant has a right to have the trial court . . . give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether "there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt. . . ." [Citations.]' [Citations.]" (People v. Mentch (2008) 45 Cal.4th 274, 288.) On appeal, we consider whether the instruction was supported by substantial evidence. (Ibid.)
Bowen contends the court should have provided the standard jury instruction, CALCRIM No. 3475, for defense of home or property. CALCRIM No. 3475 provides in part: "The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/lawful occupant) may use reasonable force to make the trespasser leave." Bowen requested the court provide a modified version of this instruction that changed the word "trespasser" to "individual."
The trial court rejected the altered instruction and concluded that even if Bowen's car could be characterized as a home, Jane Doe was not a trespasser. The court stated that the self-defense and defense of personal property instructions were sufficient. We concur. The instruction was not proper under either the facts or the law as presented here. Bowen failed to present any case law to support his assertion that his vehicle was a home or real property contemplated by CALCRIM No. 3475, or that Jane Doe could be properly characterized as a trespasser.
The car originally belonged to Jane Doe and she transferred ownership to Bowen with the understanding she could stay with him in the car if she needed a safe place. On the date of the second incident (February 9, 2015), Jane Doe asked Bowen if she could sleep in the car, and he agreed and provided her with the keys. Jane Doe was invited into the car and was not trespassing. There was no evidence presented that Bowen felt Jane Doe posed a threat to the car or to him. He presented evidence that she threw items at him and may have hit him, but he did not testify he felt he was in danger.
Therefore, we conclude there was not substantial evidence to support an instruction on defense of home or real property from trespass. Furthermore, the court gave CALCRIM No. 3476, which was more appropriate to the facts presented here. The court instructed the jury: "The owner or possessor of personal property may use reasonable force to protect that property from imminent harm. A person may also use reasonable force to protect the property of a family member or guest from . . . immediate harm." Accordingly, we affirm the judgment.
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.