Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC061965.
Ruvolo, P. J.
I. INTRODUCTION
Appellant Jairo Flores appeals from a judgment following a jury verdict convicting him of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); false imprisonment by violence, menace, fraud, or deceit (§ 236); willful infliction of corporal injury resulting in a traumatic condition on a cohabitant (§ 273.5, subd. (a)); and misdemeanor violation of a restraining order (§ 273.6, subd. (a)). Appellant challenges the convictions claiming the trial court erred in: (1) failing to modify CALCRIM No. 1240 to instruct the jury that restraining a person to prevent a suicide attempt is a defense to false imprisonment and (2) failing to stay the sentences on counts two and three under section 654. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
Appellant and Gladys Alvarez lived together in an apartment on the second floor of a complex located on North Ellsworth Avenue in San Mateo. Alvarez, struggling with depression, was unemployed and relied on appellant for support. The night before the incident leading to the charges, Alvarez attempted suicide by ingesting 10-15 anti-depressants. Appellant called the police, who took her to the hospital. She stayed in the psychiatric ward overnight, and was released on July 1, 2006.
After visiting her mother, Alvarez returned home around 3:00 p.m. She did not feel well and wanted to go to sleep, however, when she entered the apartment, appellant was angry because he was not allowed to visit her in the hospital. He accused her of being with another man instead of being at the hospital. Appellant wanted alcohol, so Alvarez accompanied him to the liquor store to purchase two six-packs of beer. Upon returning home, Alvarez decided to go to sleep. However, appellant sat next to her, drank roughly three bottles of beer, and started an argument with Alvarez.
Neighbor Lisa Sloane stated she heard music coming from an open window in the couple’s apartment. Despite the music, Sloane heard a man shouting and a woman screaming. Additionally, she heard noises that “sounded like someone being hit.” Sloane called the police.
At 5:30 p.m., San Mateo Police Detective Joyce and her partner, Officer Rizzato, responded to the dispatch regarding a domestic violence incident. Joyce received no response after knocking on the door of apartment six. However, she heard a woman’s screams over loud music in the apartment. Joyce knocked again and when there was no response, Joyce climbed through an open window next to the front door. She ran to the bedroom and opened the door. Appellant tried to shut the door, but Joyce and Rizzato were able to enter the room. The officers separated the couple and Detective Joyce took Alvarez’s statement while Officer Rizzato stayed with appellant in the living room.
Rizzato spoke to appellant in the living room. Rizzato said appellant was angry, smelled of alcohol and appeared to be under the influence. Appellant had scratches on his face, and his penis was outside his unzipped pants. Appellant waived his Miranda rights and told Rizzato that nothing had happened.
Appellant said he was angry with Alvarez because she recently tried to harm herself. Rizzato said that appellant acknowledged he grabbed Alvarez to prevent her from leaving the room. He also admitted that he would not let Alvarez use the phone, he turned up the radio to drown out her screams, and he put his shoe on her neck. He also admitted he broke bottles against the furniture. However, he denied punching Alvarez, and claimed that she gave herself a black eye. He attributed her other scratches to “rough sex” and his own to another incident. Appellant never told Rizzato that Alvarez tried to jump off the balcony, or that she picked up a knife during the incident.
Joyce recorded a conversation in the bedroom with Alvarez and an interpreter, Officer Basurto. Officer Basurto, who interviewed Alvarez, testified at trial to the recorded statements made by Alvarez. Basurto testified that Alvarez stated appellant grabbed her twice and threw her down on the bed. When she tried to get up appellant stood on the bed and pressed his foot on her cheek and neck, which subsequently slid down to her chest. Appellant was wearing tennis shoes at the time. Basurto testified that during the restraint appellant choked Alvarez with his hands for five seconds, cutting off her ability to breathe. He testified that appellant kicked Alvarez in the calves when she tried to stand up, and hit Alvarez in the face and then the back. He also testified that appellant forcibly took the phone away from her when she wanted to call the police, and turned up the radio volume multiple times to drown out her screaming.
At trial, Alvarez’s testimony was markedly different from the statement given to the officers. She testified that she ran to the balcony intending to commit suicide. However, she admitted she never mentioned this until the defense investigator questioned her in August 2006. She stated to the investigator that she believed appellant was trying to protect her when he dragged her back into the bedroom. She testified she only told the officers about the strangulation in order to have appellant taken away, however, she also admitted she wanted to protect appellant. She stated that she hit appellant with a framed photograph, breaking the glass, but did not reveal this to the defense investigator in August. Lastly, she testified she ran into the kitchen, grabbed a knife, and threatened appellant. This, too, was not mentioned to the defense investigator. Alvarez believed appellant deserved a second chance in order to support her.
At trial, appellant testified he prevented Alvarez from jumping off the balcony by carrying her back to the bedroom. He claimed she ran to the kitchen, pulled a knife, and tried to stab him. He said he disarmed her, threw her down on the bed, and put his foot on her chest to restrain her. He acknowledged he never told the police that Alvarez had tried to jump off the balcony that day, or that she pulled out a knife and tried to kill him. He stated he did this to protect her. He acknowledged the radio was so loud he did not hear the officers knocking on the door.
On November 1, 2006, Appellant was found guilty of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count one); false imprisonment by violence, menace, fraud, or deceit (§ 236; count two); willful infliction of corporal injury resulting in a traumatic condition on a cohabitant (§ 273.5, subd. (a); count three); and misdemeanor violation of a restraining order (§ 273.6, subd. (a); count five).
On December 7, 2006, the trial court sentenced appellant to two years in state prison, consisting of the two-year low term on count one, concurrent two-year terms on the remaining felony counts, and 90 days in county jail on count five. Appellant timely appealed.
III. DISCUSSION
Appellant requests reversal of the judgment based on: (1) the trial court’s failure to modify CALCRIM No. 1240 to instruct the jury that restraining a person to prevent a suicide attempt is a defense to false imprisonment and (2) the trial court’s failure to stay the sentences on counts two and three under section 654, claiming all acts were part of a continuous course of conduct.
A. Jury Instruction
Appellant claims the court erred in not modifying the standard version of CALCRIM No. 1240. On October 25, 2006, during pretrial motions, defense counsel submitted a preliminary list of instructions. The list requested the court to instruct the jury with CALCRIM No. 1240, including the optional phrase “and unlawfully.” Furthermore, counsel stated, “per Bench Notes request to define for the jury when a restraint, detention, or confinement is legal, i[.]e.[,] Prevention of further assaults on [appellant] and prevention of suicide acts of victim.” (Italics added.) When the court gave CALCRIM No. 1240, it instructed that “the People must prove that 1, the Defendant intentionally and unlawfully, meaning not in self-defense or defense of others, restrained or confined or detained someone or caused that person to be restrained or confined or detained by violence or menace, and the Defendant made that other person stay or go somewhere against that person’s will.” (Italics added.) Appellant claims this version failed to present his only defense to the charge of false imprisonment and, therefore, the jury never decided the issue.
Preliminarily, the record indicates counsel waived the proposed modification to CALCRIM No. 1240. A defendant is entitled, upon request, to a nonargumentative instruction that pinpoints his or her theory of the case. (People v. Ledesma (2006) 39 Cal.4th 641, 720.) However, 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. (People v. Hart (1999) 20 Cal.4th 546, 622, citing People v. Andrews (1989) 49 Cal.3d 200, 218, overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237, 243-244.)
Defense counsel only indicated this preferred wording in counsel’s preliminary list of instructions submitted before trial. However, at the hearing on jury instructions held on October 30, 2006, defense counsel did not mention or request the special modified version of CALCRIM No. 1240 that appeared on the preliminary list. Instead, in addition to CALCRIM No. 3470, which was included in the preliminary list, counsel requested CALCRIM No. 3471, which, like CALCRIM No. 3470, pertains to the right to self defense. Counsel’s failure to object to CALCRIM No. 3470 and the specific request for CALCRIM No. 3471 constitutes approval of their substance, and is deemed a waiver of any claim for a further pinpoint instruction based on the defense of his claimed prevention of Alvarez’s suicide.
As given, CALCRIM No. 3470 provided:
As given, CALCRIM No. 3471 provided:
Furthermore, even if not waived, and assuming further it was error by the trial court not to give the instruction either upon request, or even sua sponte, the omission was harmless. In light of the instructions actually given at trial, it is not reasonably probable that had the jury been given defendant’s additional proposed pinpoint instruction, it would have come to any different conclusion. (People v. Earp (1999) 20 Cal.4th 826, 887; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
Our Supreme Court has ruled that when an appellant’s counsel argues an issue at length in closing argument, and that issue is explained in detail by standard jury instructions, failure to give a revised pinpoint instruction is harmless. (People v. Fudge (1994) 7 Cal.4th 1075, 1111.) First, the trial court included the substance of appellant’s initial request in CALCRIM No. 1240. The trial court included the optional phrase “and unlawfully” in response to defense counsel’s request. In addition, the court followed “and unlawfully” with “meaning not in self-defense or defense of others.” The trial court properly adjusted the language to align with the self-defense instructions requested by appellant—CALCRIM No. 3470 and CALCRIM No. 3471.
Second, defense counsel repeatedly argued the self-defense instructions applied to each charge. Counsel asserted the issue was whether appellant defended himself or defended Alvarez from further harm that would have been caused by jumping off of the balcony. Counsel stated, “From our perspective you need to focus on the unlawfully part because as the Judge defined to you, if you think he acted in self-defense or in defense of her in order to save her from further injuring herself, that’s a lawful detention.”
In conclusion, it is clear that the jury specifically considered the suicide evidence when deciding if appellant acted in defense of Alvarez. The given instructions were themselves sufficient to advise the jury of the applicable law pertaining to this defense theory. Accordingly, any error in not giving a further pinpoint instruction was harmless.
B. Concurrent Sentences
Appellant claims the trial court erred in failing to stay the sentences on counts two and three under section 654 because all of the criminal acts were part of a continuous course of conduct. 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.” (§ 654.) Section 654, therefore, “ ‘ “precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts.” ’ ” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) “ ‘ “Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor.” . . . “[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.]” (Jones, supra, 103 Cal.App.4th at p. 1143; see also People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 19.)
“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. . . .” (Jones, supra, 103 Cal.App.4th at p. 1143; 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. . . .” (Jones, supra, at p. 1143; People v. Hutchins, supra, at p. 1312; People v. Herrera, supra, at p. 1466; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.) “We review the trial court’s 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. . . .” (Jones, supra, at p. 1143; People v. Hutchins, supra, at pp. 1312-1313.)
In People v. Trotter (1992) 7 Cal.App.4th 363, 368, the court found discharging a firearm multiple times at an officer was not subject to section 654, stating, “this was not a case where only one volitional act gave rise to multiple offenses. Each shot required a separate trigger pull. All three assaults were volitional and calculated, and were separated by periods of time during which reflection was possible. . . . ‘[D]efendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior.’ . . .” (Id. at p. 368; citing People v. Harrison (1989) 48 Cal.3d 321, 338.)
The record contains sufficient evidence for the court to sentence appellant to separate, concurrent terms for the convictions on counts two and three. The district attorney charged all three counts as separate acts, separated by periods of time during which reflection was possible. The prosecution argued to the jury that count one was based on appellant strangling Alvarez, count two on appellant putting his foot on Alvarez’s neck and chest, and count three on the scratches and bruises on Alvarez’s neck inflicted by appellant throughout the fight.
As summarized earlier in this opinion, there was substantial evidence presented sufficient to sustain all three convictions, and appellant does not contend otherwise. The three acts underlying the convictions did not form a continuous course of conduct, but instead were a series of separate acts of criminal misconduct on Alvarez occurring over an significant period of time in the apartment. “Section 654 is applicable when there is a single ‘act.’ But here, there were three separate acts, not one ‘made punishable in different ways by different provisions [of the Penal Code] . . . .’ [Citations.]” (People v. Trotter, supra, 7 Cal.App.4th at p. 368; see also People v. Harrison, supra, 48 Cal.3d at pp. 339-340 (conc. opn. of Mosk, J.).) Moreover, appellant ignored numerous opportunities to alter his behavior, instead continuing the assaultive activities. Reviewing the evidence in a light favorable to the respondent, as required, we conclude that these acts were temporally distant and, more importantly, motivated by separate objectives and exposed Alvarez to independent risks of harm. (People v. Felix (2001) 92 Cal.App.4th 905, 915 [“multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm”]; People v. Beamon (1973) 8 Cal.3d 625, 639 [“If [appellant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, [appellant] may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.”].)
IV. DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.
“The Defendant is not guilty of Counts 1, 2 or 3 if he used force against the other person in lawful self-defense or in defense of another. The Defendant acted in lawful self-defense or defense of another if 1, the Defendant reasonably believed that he or someone else was in imminent danger of suffering bodily injury[;] [¶] 2, the Defendant reasonably believed that the immediate use of force was necessary to defend against that danger[;] and [¶] 3, the Defendant used no more force than was reasonably necessary to defend against the danger.
“Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The Defendant must have believed that there was imminent danger of violence to himself or someone else. Defendant’s belief must have been reasonable and he must have acted because of that belief.
“The Defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation.
“If the Defendant used more force than was reasonable, the Defendant did not act in lawful self-defense or defense of another. When deciding whether the Defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the Defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed.
“If the Defendant’s beliefs were reasonable, the danger does not need to have actually existed. The Defendant’s belief that he or someone else was threatened may be reasonable even if he relied on information that was not true. However, the Defendant must actually and reasonably have believed that the information was true.
“A Defendant is not required to retreat, he is entitled to stand his grounds and defend himself, and if reasonably necessary to pursue an assailant until the danger of death or bodily injury has passed. This is so even if safety could have been achieved by retreating.
“The People have the burden of proving beyond a reasonable doubt that the Defendant did not act in lawful self-defense or defense of another. If the People have not met this burden, you must find the Defendant not guilty of assault with force likely to produce great bodily injury, false imprisonment by violence or menace, inflicting injury on cohabitant resulting in traumatic condition, battery on a cohabitant, battery, assault and misdemeanor false imprisonment.”
“A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if, 1, he actually and in good faith tries to stop fighting.
“2, he indicates by word or by conduct, to his opponent in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting.
“3, he gives his opponent a chance to stop fighting. If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.
“If you decide that the Defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the Defendant could not withdraw from the fight, then the Defendant had a right to defend himself with deadly force and was not required to try to stop fighting.”