Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura Super. Ct. No. 2006041762. James P. Cloninger, Judge
Lisa M. J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Samuel Hamlet appeals a judgment following conviction of inflicting physical injury upon a cohabitant. (Pen. Code, § 273.5, subd. (a).) We conclude that the trial court did not err by not instructing with lesser included offenses, and affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Until Deborah Chapman was imprisoned for a parole violation, she lived with Hamlet in a small house on Garden Street in Ventura, behind a house occupied by his mother. Chapman and Hamlet had lived together "off and on for ten years," during their "rocky" romantic relationship. The longest period of their uninterrupted cohabitation was two years.
During her imprisonment, Chapman corresponded with Hamlet. She informed him of the date of her release and travel plans, and he met her when she arrived in Ventura. They walked to the home that they had shared before she was imprisoned.
Over the following three days, Chapman and Hamlet argued. On one occasion, he struck and pushed her as they walked down the street. Chapman fell and injured her knee. Hamlet ran as a police officer approached. Chapman did not inform the officer that Hamlet struck her because she wanted "to protect him." Thereafter, she returned to the house she shared with Hamlet because "[t]hat's where [she] lived."
On another occasion, Hamlet struck her in the face with his hand, pushed or injured her shoulder, and struck her in the back with the cord of an electric skillet. Chapman screamed and "roll[ed] up in a ball to protect [herself]."
On the morning of July 2, 2006, Hamlet angrily entered the bedroom, breaking the door. Chapman testified that he looked as though he had consumed "way too much drugs and drinking." Hamlet struck Chapman in the face and head, rupturing her eardrum and causing facial bruising.
When Hamlet left the residence, Chapman walked to a nearby police station and obtained medical assistance. She informed an emergency room physician that Hamlet had struck her with his hand and with an electrical cord. Chapman also informed a police officer that Hamlet had "punched her, smacked her about the face and had beaten her for a couple of days." Police officers took photographs of Chapman's injuries which the court admitted into evidence at trial.
The jury convicted Hamlet of inflicting physical injury upon a cohabitant. (§ 273.5, subd. (a).) It found that he did not personally inflict great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (d).) The trial court sentenced Hamlet to a three-year mid-term sentence, imposed a $200 restitution fine and a $200 parole revocation restitution fine, ordered victim restitution in an amount to be determined, and awarded 381 days' presentence custody credit.
Hamlet appeals and contends that the trial court erred by not instructing with the lesser included offenses of misdemeanor battery, simple assault, or misdemeanor battery upon a cohabitant or person whom defendant is dating. (People v. Jackson (2000) 77 Cal.App.4th 574, 580 [misdemeanor battery upon a cohabitant is a lesser included offense of felony battery upon a cohabitant]; People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 [simple assault and misdemeanor battery are lesser included offenses of spousal battery].)
DISCUSSION
Hamlet points out that the trial court must instruct sua sponte upon any lesser offense supported by the evidence. He contends that the evidence here raises a question whether the element of cohabitation was established. (People v. Lopez (1998) 19 Cal.4th 282, 287-288 [general rule that trial court has a duty to instruct if evidence raises a question whether all elements of the greater offense have been established].) Hamlet argues that the evidence establishes that his relationship with Chapman was impermanent, inconsistent, and did not involve sharing of income and expenses. He reasons that Chapman was merely a person he was dating, rather than a cohabitant. Hamlet contends that the error is prejudicial, requiring reversal.
The trial court must instruct sua sponte upon general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This obligation includes "giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present . . . but not when there is no evidence that the offense was less than that charged." (Ibid.)
"Cohabitation" within the meaning of section 273.5 means "an unrelated man and woman 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.) Cohabitation does not require "a full quasi-marital relationship." (Id., at p. 1002.) Factors that determine cohabitation include sexual relations between the parties, sharing of income or expenses, joint use or ownership of the property, the parties' holding themselves out as marital partners, the continuity of the relationship, and the length of the relationship, among other factors. (CALCRIM No. 840.)
The trial court did not err because there was no evidence that the offense was "less than that charged." (People v. Breverman, supra, 19 Cal.4th 142, 154.) Chapman testified that Hamlet was her boyfriend and that they had a ten-year relationship, off and on. They had lived together for two years at a former location. Chapman resided at the Garden Street residence with Hamlet before and after her release from prison. She wrote to him in prison and he met her at the bus stop upon her release. Chapman cooked breakfast at their home the day following her release from prison. There is sufficient evidence of a permanent relationship with attributes of sexual or amorous intimacy. (People v. Holifield, supra, 205 Cal.App.3d 993, 1002 [sufficient evidence of cohabitation where defendant stayed with the victim frequently, had no other place to stay, had occasional sexual relations with her, and ate a few meals with her].)
The judgment is affirmed.
We concur: YEGAN, J. COFFEE, J.