Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF096287A
BUTZ, J.After a jury trial defendant Albert Fleming was found guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245), dissuading a crime victim from reporting (§ 136.1, subd. (b)(1)), dissuading a crime victim from testifying (§ 136.1, (a)(2)), and battery against a cohabitant (§§ 242, 243, subd. (e).) After a second phase of the trial, the jury found true enhancement allegations that defendant had four prior convictions of serious or violent felony offenses (§§ 667.5, subd. (c), 1192.7, subd. (c)). Sentenced to an aggregate term of 95 years to life in state prison, defendant appeals.
Undesignated statutory references are to the Penal Code.
Defendant contends that the trial court erred in: (1) its instruction on the offense of dissuading a crime victim from reporting; (2) failing to instruct on battery as a lesser included offense to assault by means of force likely to produce great bodily injury; and (3) failing to instruct, as to the offense of dissuading a crime victim from testifying, that evidence he was a family member who interceded to protect the victim creates a presumption of absence of malice. He also contends that: (4) his trial counsel provided ineffective assistance in failing to request the latter most instruction; (5) there is no substantial evidence to support the conviction of dissuading a crime victim from reporting; and (6) there is insufficient proof that one of his prior offenses was a serious felony. Finding no merit in these contentions, we shall affirm the judgment.
FACTUAL BACKGROUND
On April 29, 2005, Angela Padilla was a medical patient at Dameron Hospital in Stockton. Defendant, who had recently commenced living with her, was visiting. There were two chairs in the room. He was sitting in one chair and using the other to support his feet. Padilla told him that he should give the second chair to the little boy who was visiting the other patient in the room. Defendant became very angry and cursed Padilla. He left the room.
When he returned, she departed, hauling her IV stand, to smoke outside the building. When she returned she got into bed and turned away from him. He berated her, accentuating his insults with finger jabs to her back and head. This escalated when he pulled the pillow from under her head and hit her with it and then threw the water from the water pitcher in her face. The poking continued and when she whipped around, agitated, to tell him to stop, her swinging arm detached a chain that was around his neck. She turned away again and he went around the bed and smacked her in the face with the back of his hand. The blow caused a bruise and an abrasion. She began yelling and after the nurse came and asked him to leave, he did so. First he leaned over Padilla and said: “Bitch, if you tell them my name, I’ll kill you.”
Shortly after he left he began telephoning the room. When Padilla finally answered, he again told her that if she gave his name to the police he would kill her.
A few days later she was discharged from the hospital. About a week later they resumed cohabitation, staying at the “Traveler’s Lodge” (sic) in Stockton. On the evening of May 29, 2005, they had another quarrel. He threw her purse into the parking lot, strewing the contents, and ordered her to leave. When she did he insisted that she return to the room. When she declined he socked her in the face with a closed fist. She fell to her knees, bleeding “pretty bad” from the mouth. He began dragging her back to the room and she yelled for help and told him she needed to go to the hospital because of her mouth. The next thing she knew she was on the ground and he, shod, was kicking her several times in the face and head. When the blows stopped she got halfway up and he hit her in the face again, knocking her to the ground. Another bout of kicks to the face and head ensued. Then he left.
She lay on the ground awhile. When she got up she could not see out of one eye. Eventually the police came and she was taken to the hospital by ambulance. The beating defendant administered fractured the whole top side of Padilla’s mouth, requiring removal of her front teeth and installation of a plate. She needed stitches in the lower right-hand corner of her lip, inside and out. He broke the socket of her right eye and at the time of trial, more than a year later, she was “struggling a lot” with vision from that eye. Such a blow-out fracture of the orbital socket takes “a lot of force.” The injuries required more than five trips to medical and dental practitioners.
In early June, after this action had commenced, Padilla received a letter from defendant. In the letter he begged her to stop helping law enforcement authorities send him away for life: “Just never come to court again.”
DISCUSSION
I. There Is Substantial Evidence Defendant Dissuaded a Crime Victim from Reporting
Defendant contends there is no substantial evidence of the offense of dissuading a crime victim from reporting, section 136.1, subdivision (b)(1), in the showing that, after abusing Padilla and striking her in the face, he told her he would kill her if she gave his name to the police. He argues that this does not show he dissuaded her from “[m]aking any report of that victimization” (ibid.), as he was only dissuading her from giving up his name. The argument is specious and the contention of error has no merit.
Section 136.1, subdivision (b)(1), is as follows:
The purpose of a crime report is to inform the authorities of the facts about an offense that are needed to decide whether to launch a prosecution. One reports being the victim of a crime by telling, insofar as one knows, what happened, when it happened, where it happened, and who did what to whom. All such information is part of “any report of” the victimization. It would be nonsensical to outlaw dissuasion of making any report but except from that dissuasion any part of the critical pertinent information that makes up such a report.
Defendant submits that the statute does outlaw such conduct, just not in this subdivision. He submits that his delict is governed by subdivision (b)(3) of the statute which outlaws dissuading the victim from “causing or seeking the arrest of any person in connection with that victimization.” He submits that in threatening Padilla he was “most likely seeking to prevent or dissuade her from causing his arrest.”
Penal Code section 136.1 describes the dissuading conduct it proscribes with various operative terms, e.g., “attending or giving testimony [at a proceeding]” (subd. (a)(1)); “[m]aking any report” (subd. (b)(1)); “[c]ausing a complaint [to issue]” (subd. (b)(2)); “assisting in the prosecution” (ibid.); or “causing or seeking the arrest” (subd. (b)(3)). That some of these terms may overlap affords no implication they are meant to exclude each other. No reasonable law giver would intend that the miscreant evade conviction with a claim his conduct can only be placed in the uncharged pigeonhole of his choice. We need not decide whether defendant could also have been charged under subdivision (b)(3) of Penal Code section 136.1. (See, e.g., Civ. Code, § 3537.) It suffices to say that evidence he threatened Padilla with death if she reported his name to the police as the one who committed the crime satisfies the criteria for conviction of the offense described in section 136.1, subdivision (b)(1), and is sufficient to uphold his conviction. Defendant’s contention to the contrary is meritless.
For the same reasons, we find no merit in defendant’s parallel contention that the trial court erred in failing to instruct properly on the elements of the offense, under the view that the “real” offense was dissuading Padilla from causing or seeking his arrest, under section 136.1, subdivision (b)(3).
II. There Was No Occasion to Instruct on Battery as a Lesser Included Offense
Defendant contends the trial court erred in failing to instruct sua sponte on battery as a lesser included offense to assault by means of force likely to produce great bodily injury. He concedes that no such instruction is required where the evidence “necessarily indicates force likely to produce great bodily injury.” (People v. Berry (1976) 18 Cal.3d 509, 519 [the defendant choked a woman until she became unconscious].) However, he submits that where the blow is by a fist or shod foot the lesser offense instruction is required. The argument is unpersuasive and the contention of error is not meritorious.
Defendant relies on the following statement, taken out of context, from People v. McCaffrey (1953) 118 Cal.App.2d 611, 617: “[W]hether the blow of a fist or the kick of a shod foot was of such force as was likely to produce great bodily injury was a question for the jury.” He draws from this the conclusion that where the attack is by such means, there is always a jury question about whether the means of force was likely to produce great bodily injury. However, that reasoning is fallacious.
In McCaffrey the issue was not whether there should have been an instruction on simple assault. It was rather, whether there was substantial evidence of use of force likely to produce great bodily injury. The statement in McCaffrey only means an appellate court will not overturn on substantial evidence grounds a conviction based on a jury finding that in such an assault the degree of force used was likely to produce great bodily injury. That has no bearing on the question whether the evidence in a particular case, including the evidence of the injuries, “necessarily indicates force likely to produce great bodily injury.” (People v. Berry, supra, 18 Cal.3d at p. 519.)
In this case the evidence about the force of the blows defendant administered, including the severity of the injuries he inflicted and the lack of any evidence that the injuries were a freakish outcome, “necessarily indicates force likely to produce great bodily injury.” Thus, the trial court did not err in failing to instruct sua sponte on battery as a lesser included offense.
III. There Was No Obligation to Instruct on the Relation of Family Membership to Malice As to the Offense of Dissuading a Crime Victim from Testifying
Defendant contends that the trial court erred in failing to instruct sua sponte that, as to the charge of knowingly and maliciously dissuading a crime victim from testifying, “‘evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.’” (Quoting § 136.1, subd. (a)(3).) Defendant submits he was a family member because he was a cohabitant and he and Padilla called each other husband and wife. He argues that the jury, if so instructed, might have decided that his letter begging the victim not to help the authorities send him away for life and never to come to court again was not malicious because “[his] actions were intended as nothing more than an intercession on [her] behalf to have her avoid the stress of the court process.” The argument is unpersuasive and the contention of error has no merit.
When evidence is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt, the defendant may seek a “pinpoint” instruction. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) “Such instructions relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken identification or alibi. (See People v. Rincon-Pineda [(1975)] 14 Cal.3d [864,] 885.) They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.” (Ibid.)
On appeal defendant also contends that his counsel was prejudicially ineffective in failing to offer such a pinpoint instruction. In evaluating such claims, our review of counsel’s performance is to be highly deferential. (See, e.g., People v. Duncan (1991) 53 Cal.3d 955, 966.) It suffices to say that counsel could reasonably decide as a matter of trial tactics that an argument that defendant was only trying to “protect” Padilla by dissuading her from testifying had no chance of success and a fair chance of irritating the jury.
If defendant had thought the evidence of his letter to Padilla could raise a doubt on the element of malice, he could have sought a pinpoint instruction of this nature. We need not decide whether, within the meaning of section 136.1, he was a “family member” or whether there is evidence that he interceded in an effort “to protect” Padilla. He did not ask for the instruction.
The jury was instructed in the pertinent definition of malice provided in section 136: “‘Malice’ means an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice.” (§ 136, subd. (1).)
An issue on which we have no occasion to decide.
In view of the evidence presented and the arguments advanced by the parties, the instruction was not required sua sponte. The effect of acts for the protection of the victim on malice is not a general principle of law commonly or closely and openly connected to the facts that was necessary for the jury’s understanding of the case. The defense submitted no evidence. There was no suggestion in the closing arguments that malice was a significant issue. The defense never suggested that defendant was concerned about “protecting” Padilla from the trauma of trial; counsel only offered that the letter was a plea for sympathy. “Under these circumstances, the trial court was under no obligation to sift through the evidence to identify an issue that conceivably could have been, but was not, raised by the parties, and to instruct the jury, sua sponte, on that issue.” (People v. Montoya (1994) 7 Cal.4th 1027, 1050.)
IV. There Is Substantial Evidence That Defendant’s 1988 Conviction of Battery Inflicting Serious Bodily Injury Was a Serious Felony
Defendant contends that there is no substantial evidence that the 1988 prior was one in which he inflicted great bodily injury. The prior conviction was for battery resulting in serious bodily injury. (§ 243, subd. (d).) He argues that an adjudication of serious bodily injury does not show great bodily injury, a required criterion for a serious felony under section 1192.7.
He acknowledges that case law has rejected this claim. (E.g., People v. Moore (1992) 10 Cal.App.4th 1868, 1871.) However, he suggests there is a split in apposite authority and argues that we should side with him based upon People v. Taylor (2004) 118 Cal.App.4th 11, 19-25. The argument is not persuasive and the contention of error is without merit.
As the Attorney General notes, we have rejected the expansive view of Taylor urged by the defendant in People v. Arnett (2006) 139 Cal.App.4th 1609. In that case we distinguished Taylor from the run-of-the-mill serious bodily injury case on its facts; i.e., that the jury which returned the serious injury verdict also returned a verdict finding the parallel great bodily injury enhancement allegation was not true. (Id. at p. 1615.) “As recognized by the court in Taylor, ‘In the absence of any contrary indication in the record, the trial court . . . [i]s justified in applying the usual assumption that “great bodily injury” and “serious bodily injury” are “essentially equivalent.”’ ([Taylor, supra, 118 Cal.App.4th] at p. 26.)” (Ibid.)
There is no contrary indication as to great bodily injury in the record in this case. Accordingly, the contention that there is no substantial evidence that the 1988 prior was one in which defendant inflicted great bodily injury is not meritorious.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P. J. CANTIL-SAKAUYE, J.
“(b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:
“(1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.”