Opinion
C038323.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. REBECCA LEE DIESSLIN, Defendant and Appellant.
A jury convicted defendant Rebecca Lee Diesslin of inflicting corporal injury on a cohabitant and misdemeanor assault (Pen. Code, §§ 273.5, subd. (a), 240; all further unspecified section references are to the Penal Code). She was sentenced to four years in prison. Defendant appeals, contending the trial court erred by denying her Wheeler motion to discharge the jury panel and by giving constitutionally deficient jury instructions. Defendant also contends her assault conviction must be reversed because assault is a lesser included offense of infliction of corporal injury. We shall dismiss the assault conviction, and affirm the judgment as modified.
People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (Wheeler).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was originally charged with one count of inflicting corporal injury on a cohabitant, D.J. (victim), and one count of assault with a deadly weapon, to wit, a brass elephant and a vase. (§§ 273.5, subd. (a), 245, subd. (a)(1).) It was alleged as to both counts that defendant had inflicted great bodily injury upon the victim. (§ 12022.7, subd. (b).)
The following facts were adduced at trial. Victim, 66 years old at the time of trial, and defendant, 32 years old, had been married for three or four years. Although they had divorced, they still lived together. Victim was disabled from a leg injury, and defendant was his live-in paid caregiver.
On October 10, 2000, defendant had been drinking vodka. She became angry at victim and struck him in the back of the head. Victim called 911, reporting that he was bleeding profusely from head wounds inflicted by defendant. Victim told the police he had been struck with a vase and a brass elephant. The responding police officer saw defendant throw a bicycle toward victim.
Through victims testimony and the testimony of several police officers, the prosecution introduced evidence of two prior acts of domestic violence committed by defendant against victim several months before this case arose. On August 17, 2000, while drinking, defendant had punched victim in the face, causing a laceration and resulting in police intervention. The police again came to victims house on August 22, 2000. The officer thought defendant was intoxicated. Victims shirt was torn, but he was not injured. Victim told the officer defendant had been assaulting him nearly every day, but he did not want her prosecuted.
The trial court instructed the jury that assault was a lesser offense to assault with a deadly weapon in count 2, and that battery was a lesser offense to both counts 1 and 2. However, the district attorney prepared verdicts that specified that battery was the lesser included offense only for count 1 and that simple assault was the lesser included offense for count 2. The jury found defendant guilty of inflicting corporal injury as charged in count 1. The jury acquitted defendant of assault with a deadly weapon in count 2 but found her guilty of simple assault as a lesser offense. The jury found the enhancement allegations of inflicting bodily injury untrue as to each count.
The court sentenced defendant to the upper term of four years in prison on count 1, but failed to pronounce sentence on the misdemeanor assault in count 2.
DISCUSSION
I.
Defendant contends the trial court failed to adequately evaluate the prosecutions explanation for the exercise of its peremptory challenges to exclude men in violation of the California Constitution and the equal protection clause after finding a prima facie case of group bias under Wheeler, supra, 22 Cal.3d 258. Defendant specifically argues that the court erred in finding the prosecutions exercise of peremptory challenges was legitimate because it was not based upon a "specific bias on the part of the individual juror. (People v. Turner (1986) 42 Cal.3d 711, 721, 230 Cal. Rptr. 656, 726 P.2d 102 [emphasis added].)" We find no error.
After several hours of voir dire, 12 jurors and 2 alternates were sworn in at 2:54 p.m. At 2:58 p.m., defendant made a Wheeler motion, based upon the prosecutors use of each of his peremptory challenges to remove men from the jury. The trial court found that the defense had made a prima facie showing of group bias, and sought explanations from the prosecutor for the exercise of each challenge. After the prosecutor provided such explanations, defense counsel objected. Defense counsel charged that the justifications given for challenging two prospective jurors were insufficient. The court found the prosecutors explanations to be legitimate.
A partys use of peremptory challenges to remove prospective jurors based upon group bias violates article I, section 16 of the California Constitution. (People v. Box (2000) 23 Cal.4th 1153, 1187; Wheeler, supra, 22 Cal.3d at p. 277.) Group bias is based upon a partys assumption that members of certain identifiable groups distinguished by racial, religious, ethnic or other similar grounds are biased. A party may not use peremptory challenges to systematically exclude jurors by sex. (People v. Williams (2000) 78 Cal.App.4th 1118, 1125.)
A three-step process is required to evaluate a claim that an improper use of peremptory challenges has taken place:
(1) the party making the objection must make a prima facie case of improper discrimination; (2) the burden shifts to the party exercising the challenge to come forth with an explanation unrelated to the group characteristic, i.e., race or sex; and (3) the court must decide whether, on the record as a whole, the opponent has proved purposeful improper discrimination. (People v. Silva (2001) 25 Cal.4th 345, 385.)
A. Timeliness
A motion attacking a partys use of peremptory challenges must be raised in a "timely fashion." (Wheeler, supra, 22 Cal.3d at p. 280; People v. Ortega (1984) 156 Cal. App. 3d 63, 69-70, 202 Cal. Rptr. 657.) A motion for mistrial based on a claim of discriminatory use of peremptory challenges, first asserted after the jury has been sworn, is untimely. (People v. Thompson (1990) 50 Cal.3d 134, 179, 266 Cal. Rptr. 309, 785 P.2d 857.)
The motion in this case was openly made after both the jury and the alternates had been sworn in. However, before the exercise of the last peremptory challenge by the People, defense counsel asked to approach the bench. The bench conference was not reported. The People exercised another peremptory challenge. The panel of 12 was then complete. Two alternates were examined and selected. Immediately after the jury was sworn in, the court excused the jurors, explaining it had a matter to discuss with the attorneys. The trial court then stated: "All right. [Defense counsel], you had a motion."
Unlike other cases where a mistrial motion has been found to be untimely, the prosecution failed to object to the motion as untimely. (Compare People v. Perez (1996) 48 Cal.App.4th 1310, 1314; People v. Gore (1993) 18 Cal.App.4th 692, 703.) In their brief, the People agree that a fair reading of the record would indicate defense counsel probably made her motion off the record before the conclusion of jury selection. It appears to us that this ambiguity in the record should result in a decision on the merits.
B. Appellate Review
Appellate courts are charged with determining whether the decision of the trial court that there has been no exclusion based upon group bias is based upon substantial evidence which results from an adequate inquiry. The Supreme Court held in People v. Jackson (1996) 13 Cal.4th 1164, at pages 1197-1199, 920 P.2d 1254: "If the trial court makes a "sincere and reasoned effort" to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. In such circumstances, an appellate court will not reassess good faith by conducting its own comparative juror analysis. Such an approach would undermine the trial courts credibility determinations and would discount "the variety of [subjective] factors and considerations," including "prospective jurors" body language or manner of answering questions,[] which legitimately inform a trial lawyers decision to exercise peremptory challenges. (People v. Montiel (1993) 5 Cal.4th 877, 909, 855 P.2d 1277.)" (People v. Dunn (1995) 40 Cal.App.4th 1039, 1048.)
Wheeler motions are generally factual determinations which are properly reviewed by applying the substantial evidence test. (People v. Alvarez (1996) 14 Cal.4th 155, 196-197, 926 P.2d 365.)
C. The Trial Courts Decision
Wheeler does not require the trial court to conduct further inquiry into the prosecutors race-neutral explanations if, as here, it is satisfied from its observations that they are plausible. (People v. Silva, supra, 25 Cal.4th at pp. 385-386; People v. Jackson, supra, 13 Cal.4th 1164 at pp. 1198-1199.) In fact, prospective "jurors may be excused based on `hunches and even `arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias." (People v. Turner (1994) 8 Cal.4th 137, 165, 878 P.2d 521. Even under federal standards, " a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection." (People v. Box, supra, 23 Cal.4th 1153 at p. 1186, fn. 6; see Purkett v. Elem (1995) 514 U.S. 765, 769 [131 L. Ed. 2d 834, 115 S. Ct. 1769].) The United States Supreme Court stated in Purkett v. Elem "Unless a discriminatory intent is inherent in the prosecutors explanation, the reason offered will be deemed race neutral." (Id. at pp. 765, 768 [514 U.S. 765, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769]; People v. Silva, supra, 25 Cal.4th at p. 384.)
The Supreme Court granted review in a case that concerned the adequacy of a trial courts inquiry into the prosecutions explanations for the exercise of peremptory challenges. (People v. Reynoso, formerly 94 Cal.App.4th 86, review granted Feb. 20, 2002, S103343.)
We conclude the trial court made a "sincere and reasoned" inquiry into the prosecutors explanations. Every factor in the prosecutors explanations appears to be sex-neutral. There is no hint of group bias, pretextual subterfuge, or purposeful discrimination on the part of the prosecution. There was substantial evidence to support the courts finding that these were legitimate peremptory challenges.
Examination of the appellate record only shows a defense objection to the prosecutors reasons for the exercise of two peremptory challenges, not for six as described in defendants brief. The prosecutor was asked to state his reasons for exercising each peremptory challenge, which he did for all nine challenges used. After hearing the prosecutors reasons, defendants trial counsel only contested two challenges: juror Prag, a family law lawyer who knew defense counsel, and juror Brown, whom the court found had a hard time hearing and who worked as a "family support counselor." Defense counsel then stated: "The others were probably — I think the others he has a good excuse for." Defense counsels comment effectively conceded the issue concerning these four jurors.
With regard to prospective juror Prag, the trial court found it was a reasonable assumption that an attorney might go outside the law given by the judge. The prospective jurors familiarity with defense counsel provided a reasonable basis for a challenge. Concerning prospective juror Browns occupation as a family support counselor, the trial court found it was speculation whether Brown would be supportive or adverse to the Peoples position; however, the court found the prosecutors explanation "appropriate." The reasons given for exclusion of the last two questioned jurors were specifically relevant to the circumstances of this case.
Further examination of the record is unnecessary. We do take note, however, that the prosecution did not use all 10 peremptory challenges. The record as a whole fails to establish any impermissible discrimination, purposeful or otherwise. Therefore, there is no error.
II.
Defendant contends for the first time on appeal that the trial court erred by failing to give CALJIC NO. 2.50.1, which explains the burden of proof and standard of evidence the jury should employ in evaluating "prior acts" evidence. He argues the omission of this instruction thereby invited the jury to convict defendant simply based upon finding by a preponderance of the evidence that defendant had committed prior acts of domestic violence. As we explain, any error in failing to give this instruction was harmless in light of the other instructions given on the same subject.
The giving of any instruction is a mixed question of fact and law that we independently review. (People v. Waidla (2000) 22 Cal.4th 690, 733, 996 P.2d 46.) Instructional error may be raised on appeal, without objection, when it affects the substantial rights of the parties. (Pen. Code, § 1259.)
We evaluate instructional error by examining jury instructions as a whole and determining whether there is a reasonable likelihood the jury misunderstood the instructions in the manner suggested by the defendant. (People v. Holt (1997) 15 Cal.4th 619, 677, 937 P.2d 213;People v. Clair (1992) 2 Cal.4th 629, 662-663, 828 P.2d 705.) CALJIC No. 2.50.1 provides:
"Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed [a] [crimes] [or] [sexual offenses] other than [that] [those] for which [he] [she] is on trial. [P] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that [a] [the] defendant committed the other [crimes] [or] [sexual offenses]." The purpose of this instruction is to reiterate that the prosecution has the burden of proof on a prior act of domestic violence, and to tell the jury it should first find the prior crime true by a preponderance before using it for any purpose. This instruction is one of a number of cautionary instructions, developed to guide a jury in proper consideration of admissible propensity evidence.
It is well-settled that prior acts of domestic violence may be admitted under Evidence Code section 1109, upon a proper showing and in conjunction with appropriate limiting instructions.
CALJIC 2.50.02 provides, as given in this case: "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.
"Domestic violence means abuse committed against an adult or fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitate [sic], or with whom the defendant has had a child or is having or has had a dating or engagement relationship. Cohabitate [sic] means two unrelated adult persons living together for a substantial period of time resulting in some permanency of the relationship. [P] Factors that may determine whether the persons are cohabiting include, but are not limited to, sexual relations between the parties while sharing the same living quarters, sharing of income or expenses, joint use or ownership of property, whether the parties hold themselves out as husband and wife, the continuity of the relationship, the length of the relationship.
"Abuse means intentionally or recklessly causing or attempting to cause great bodily injury or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself or another.
"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 the same or similar type of offenses. If you find that the defendant had this disposition, you may, but are not required to infer that she was likely to commit and did commit the crime or crimes of which she 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 she committed the charged offenses. The weight and significant [sic], if any, are for you to decide.
"Unless you are otherwise instructed, you must not consider this evidence for any other purpose."
We have held the admission of prior acts of domestic violence as admissible propensity evidence under Evidence Code section 1109 in domestic violence prosecutions does not violate due process by lessening the prosecutions burden of proof. (People v. Johnson (2000) 77 Cal.App.4th 410, 417-420.) This version of CALJIC No. 2.50.02 has been upheld by this court and is not challenged here. The entire group of CALJIC instructions which advise the jury as to the proper consideration of prior acts of domestic violence has repeatedly been upheld. (People v. Jeffries (2000) 83 Cal.App.4th 15, 22-25; People v. ONeal (2000) 78 Cal.App.4th 1065, 1078-1079; People v. Regalado (2000) 78 Cal.App.4th 1056, 1060-1063; and People v. Van Winkle (1999) 75 Cal.App.4th 133, 145-147.)
We hold that any error in failing to give CALJIC No. 2.50.1 was purely a matter of misinstruction cured by repetition of the same principles in other instructions. There is no sua sponte duty to give CALJIC No. 2.50.1, as such. (See Use Note to CALJIC No. 2.50.1 (2002 rev.) (6th ed. 1996).) The particular value of CALJIC No. 2.50.1 is that it emphasizes that the prosecution has the burden of proof for prior crimes of domestic violence. The instruction that the prosecution had the burden of proof was already before the jury in CALJIC No. 2.90. The other portion of the omitted instruction reminded the jury not to consider prior acts for any purpose unless the jury found them true by a preponderance of the evidence. That admonition was also given to the jury in CALJIC No. 2.50.02. The jury was also instructed with the definition of preponderance in 2.50.2.
CALJIC No. 2.50.2, as given, provides:
"Preponderance of the evidence means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.
"You should consider all [of] the evidence bearing upon every issue regardless of who produced it."
In addition, as the People argue, the jury was given CALJIC No. 2.01, which includes a reminder that each element of a crime must be proved beyond a reasonable doubt. The People argue there is an inherent conflict between 2.50.1 and 2.01, the instruction describing how a jury is to evaluate circumstantial evidence on an element of the crime. (People v. Hill (2001) 86 Cal.App.4th 273, 278; People v. Frazier (2001) 89 Cal.App.4th 30, 36-37.) The CALJIC Use Note to No. 2.50.1 describes the conflict as present when the prosecutions proof is primarily circumstantial and where proof of the other crime is a part of a set of circumstances necessary to establish guilt. (Id., (2002 rev.) (6th ed. 1996).) In that case, CALJIC No. 2.01 is controlling. (People v. Carpenter (1997) 15 Cal.4th 312, 382, 935 P.2d 708.) Assuming that propensity evidence is admissible because it is circumstantial evidence of guilt, CALJIC No. 2.01 directed the jurys attention to the reasonable doubt requirement for each fact and circumstance necessary to support a finding of guilt. Arguably, this instruction directed the jury to a higher standard than the preponderance standard set forth in the missing CALJIC No. 2.50.1. Therefore, CALJIC No. 2.01 further eradicated any possibility of prejudice.
CALJIC No. 2.01, as given, provides: "However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime. But (2) cannot be reconciled with any other rational conclusion.
"Further, each fact which is essential to complete a set of circumstances necessary to establish the defendants guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.
"Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendants guilt and the other to her innocence, you must adopt that interpretation that points to the defendants innocence, and reject that interpretation that points to her guilt.
"If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable."
III.
Defendant contends the trial court erred by giving CALJIC No. 17.41.1. He argues that the pattern instruction improperly compromises the private and uninhibited character of jury deliberations and constitutes an impermissible anti-nullification instruction, in violation of defendants state and federal constitutional rights to due process and to a jury trial. The California Supreme Court examined these arguments in (People v. Engelman (2002 28 Cal.4th 436.) The Supreme Court held there was no federal or state error in giving CALJIC No. 17.41.1, although it exercised its supervisory power in ruling that it should not be given in the future. Arguments identical to those raised by defendant were rejected in Engelman, which we follow. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
Without any defense objection, the trial court instructed the jurors they were to advise the court of any misconduct by other jurors, in the language of CALJIC No. 17.41.1:
"The integrity of a trial requires that jurors at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
There was no error.
IV.
Defendant contends that the guilty finding of simple assault must be reversed because simple assault is a lesser included offense of inflicting corporal injury on a spouse. We agree.
The rule asserted by defendant, that a person cannot be convicted of both a greater and lesser included offense, is the rule in this state. (People v. Ortega (1998) 19 Cal.4th 686, 692, 968 P.2d 48; People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal. Rptr. 509, 721 P.2d 595.) The test for determining whether an offense is a lesser included offense for purposes of this rule is simply whether one offense cannot be committed without necessarily committing the other. (Ibid.) This is a more limited and stringent test than is employed for other purposes in determining lesser included offenses. (People v. Scheidt (1991) 231 Cal. App. 3d 162, 169-171, 282 Cal. Rptr. 228.) We look to the statutory elements of the offenses and unless all of the statutorily required elements of the lesser are also statutorily required elements of the greater offense, it is not a lesser included offense for this purpose. (Ibid.)
Both simple assault (People v. Van Os (1950) 96 Cal. App. 2d 204, 206, 214 P.2d 554 and misdemeanor battery (People v. Stewart, supra, 188 Cal. App. 2d 88, 90) are included in a prosecution of section 273.5. Section 273.5 is a battery offense, and assault is a necessary element of battery. (People v. Thurston (1999) 71 Cal.App.4th 1050, 1053; cf. People v. Colantuono (1994) 7 Cal.4th 206, 216, 865 P.2d 704.)
The prosecution charged defendant with both infliction of corporal injury and assault with a deadly weapon, neither of which is a lesser offense to the other. The jury was instructed, apparently after some confusion, that battery was a lesser included offense to the former, and simple assault was a lesser included offense to the other.
The People contend that this issue is moot because the court failed to pronounce sentence on count 2. The People are correct that a failure to pronounce judgment at the time and place fixed for the pronouncement entitles defendant to a new trial. Penal Code section 1202 provides:
"If no sufficient cause is alleged or appears to the court at the time fixed for pronouncing judgment, . . . why judgment should not be pronounced, it shall thereupon be rendered; and if not rendered . . . then the defendant shall be entitled to a new trial."
However, a new trial is not an appropriate remedy when a new conviction would be barred. (See People v. Ortega, supra, 19 Cal.4th 686.) Therefore, we remand with directions to dismiss.
CONCLUSION
As modified, the judgment is affirmed. The trial court is ordered to issue a minute order dismissing the assault charge in count 2, and to forward a copy of that order to the Department of Corrections.
The petition for rehearing is denied.
We concur: BLEASE, Acting P.J., HULL, J.