Opinion
H044984
12-17-2018
THE PEOPLE, Plaintiff and Respondent, v. TODD HOSEIN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1628178, C1520009)
A jury convicted defendant Todd Hosein (Hosein) of a misdemeanor count of battery on a person with whom he had a dating relationship, pursuant to Penal Code section 243, subdivision (e)(1), along with other charges. Hosein appeals that conviction, arguing there is insufficient evidence that he and the victim had a "dating relationship." A review of the whole record discloses substantial evidence supporting the offense such that a reasonable trier of fact could find Hosein guilty beyond a reasonable doubt. We affirm the judgment.
All future statutory references are to the Penal Code unless otherwise noted.
I. FACTUAL AND PROCEDURAL BACKGROUND
The District Attorney charged Hosein by way of information with criminal counts alleged to have been committed in several incidents of domestic violence against the complaining witness, Ms. Kwan (Kwan) in July and November 2015, and April 2016: count 1, false imprisonment (§ 236-237); count 2, inflicting corporal injury on a person with whom he had a dating relationship (§ 273.5, subd. (a)); count 3, attempting to dissuade a victim or witness from reporting a crime (§ 136.1, subd. (b)(1)); count 4, first degree burglary—entering with intent to commit felony (§ 459-460, subd. (a)); count 5, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); count 6, inflicting corporal injury on specified person (§ 273.5, subd. (a)), and count 7, violation of a protective order (§ 166, subd. (c)(1)).
The matter proceeded to trial and the jury heard the evidence from Kwan, two neighbors who called the police, two responding officers, and one expert in the area of intimate partner violence. Hosein did not testify.
Hosein and Kwan met in 2009. Kwan confirmed that the parties were in an "on and off" dating relationship for eight to nine years, although she qualified that description by stating they were friends who were "just intimate." Hosein and Kwan were not married, did not live together, and had no children together. However, while they did not reside in the same home, Hosein would stay at Kwan's apartment, and did stay there for the two weeks prior to the July 2015 incidents that led to the criminal charges alleged in the information. Kwan testified Hosein was at her home nearly every day for years, and often slept over. Although he did not keep any clothes or toiletries at her apartment, he used her toiletries instead. They took trips together. Kwan confirmed the relationship became "romantic or physical" at some point.
Prior to July 2015, Hosein either had a key to Kwan's apartment, or otherwise had permission to be in her home, whether she was present or not. Two of Kwan's neighbors testified at trial; both thought Hosein lived with Kwan. One of the neighbors referred to Hosein as Kwan's "boyfriend." The two law enforcement officers who testified at trial each indicated Kwan told them Hosein was her "boyfriend."
Although she described Hosein as her friend, at trial Kwan admitted she referred to Hosein's relationships with other women in a hostile manner during phone calls recorded while Hosein was in custody. Kwan admitted having arguments with Hosein about another woman, but denied feeling jealous about her. Kwan says she told Hosein he could date whomever he wanted; she also testified she did not care if he slept with other women. However, Kwan was concerned that Hosein could infect her with sexually transmitted diseases.
While she denied she was jealous of other women with whom Hosein had relationships, Kwan admitted that she took the following actions against him prior to the incidents charged in this case: she cut up a pair of his shoes, poured "something" on his car, chased him in her car, threatened him with a taser, and tracked him with spyware on his phone. She also threatened to do additional damage to his car, "if he decided to continue to put [her] in danger by conversing with this girl who basically had [Kwan] arrested for something [she] didn't even do." Kwan admitted to "email[ing] [Hosein] in anger about other women," although she stated that was "only for the fact that it was putting [Kwan's] life in danger." Kwan also admitted to fighting with Hosein about other women, again saying it was because she felt "he was endangering [her] life."
Kwan testified that the parties' relationship ended once it turned "physical." Prior to July 2015, the parties had conversations about Kwan wanting to end their friendship. Kwan testified that on July 8, 2015, she came home to find Hosein in her apartment. Kwan was not expecting him to be there; she had not invited him over or otherwise given him specific permission to be there on that date. When Kwan told Hosein to leave, he got angry and became aggressive, getting "in her face" and yelling at her. When Kwan attempted to get up, Hosein grabbed her arms and sat her back down, leaving marks on her arms. Kwan tried to get her phone to call the police, but Hosein grabbed it out of her hand. When Kwan tried to scream, Hosein put his hand over her mouth. He threatened to punch her if she continued trying to scream. At some point Hosein punched Kwan in the arm, leaving a bruise. Eventually, Kwan was able to get to her phone and call the police. Hosein was gone by the time they arrived.
Kwan further testified that the next day, July 9, 2015, Kwan again came home to find Hosein in her apartment without her permission. She found him eating a pizza he had ordered. As she did on the previous day, Kwan told Hosein to leave. When he did not, Kwan called the police. Hosein kicked over a table and charged at Kwan while she was on the phone. He pushed Kwan, causing her to fall over and hit her back on the toilet in the open bathroom. Hosein left the scene before the police arrived. Kwan told the officers responding to her call that Hosein was her boyfriend.
On November 9, 2015, Kwan stated she was sleeping in her apartment when she awoke to Hosein yelling at her. Hosein had entered the home through a bathroom window, something he had done many times in the past, although previously with her permission. Hosein put a jacket over Kwan's head, put his arms around her neck, choked her, and pushed her down. He also kicked her in the chest. Kwan screamed. Kwan then called 911. She told the responding police officer that she had been assaulted by her boyfriend.
On December 14, 2015, the court issued a no-contact protective order against Hosein, pursuant to section 136.2, which allows the court to issue a restraining order, "[u]pon a good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur . . . ." Kwan testified that on April 8, 2016, Hosein tried to enter Kwan's home through the bathroom window, in violation of the protective order.
The record indicates Kwan may have filed for one or more civil restraining orders against Hosein as well; at minimum she completed an application for such an order. The record does not show whether the trial court granted such an order, or whether she made her application under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.) or Code of Civil Procedure section 527.6.
At the close of evidence, the trial court dismissed counts 4, first degree burglary—entering with intent to commit felony (§ 459-460, subd. (a)) and count 5, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), based on insufficiency of evidence. Following deliberations, the jury found Hosein not guilty of the felony charge of inflicting corporal injury on a person with whom he had a dating relationship (§ 273.5) alleged in count 6, but guilty of the lesser included misdemeanor offense of battery on a person with whom he had a dating relationship (§ 243, subd. (e)(1)), the conviction at issue in this appeal. The jury also found Hosein not guilty of count 1, felony false imprisonment (§ 236-237), but guilty of the lesser included offense of misdemeanor false imprisonment (§ 236-237). The jury returned a not guilty verdict on count 3, attempting to dissuade a victim or witness from reporting a crime (§ 136.1, subd. (b)(1)), and a guilty verdict on count 7, violation of a protective order (§ 166, subd. (c)(1)). The jury could not reach a verdict on count 2, inflicting corporal injury on a person with whom he had a dating relationship (§ 273.5, subd. (a)); the court declared a mistrial as to that count, after which the District Attorney dismissed the count based on insufficiency of evidence.
The trial court suspended imposition of sentence and place Hosein on three years of formal probation, with the following conditions: that he serve 60 days in county jail, which he could perform through the sheriff's work program; that he pay various fines and fees, including $50 to the battered persons shelter fund; and that he complete a 52-week domestic violence counseling program. The trial court also issued a five-year protective order precluding Hosein from any contact with Kwan.
II. DISCUSSION
Hosein argues there is insufficient evidence in the record to support the conviction in count 6 under section 243, subdivision (e)(1), alleging the prosecution failed to prove beyond a reasonable doubt that he and Kwan had a "dating relationship," a necessary element of the statute. Specifically, he argues the relationship lacked "intimate associations that were 'frequent' or which were 'primarily characterized' by the expectation of affectional or sexual involvement." He asks us to overturn his conviction under section 243, subdivision (e)(1), and adjust his sentence accordingly.
Looking at a challenge to the sufficiency of the evidence to support a conviction, we " ' examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] . . . In making our determination, we focus on the whole record, not isolated bits of evidence.' [Citation.] We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. [Citations.]" (People v. Upsher (2007) 155 Cal.App.4th 1311, 1321-1322 (Upsher).)
Section 243, subdivision (f)(10) defines a " '[d]ating relationship' " for purposes of crimes of domestic violence such as section 243, subdivision (e)(1) as "frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations." (§ 243, subd. (f)(10).) The statute does not define "affectional" involvement. " 'Because the statutory language is generally the most reliable indicator of [the Legislature's] intent, we look first at the words themselves, giving them their usual and ordinary meaning.' ([Citation]; see also Pen. Code, § 4 [provisions of Penal Code " 'are to be construed according to the fair import of their terms, with a view to effect [the Penal Code's] objects and to promote justice'].)" (People v. Ruiz (2018) 4 Cal.5th 1100, 1105-1106.) "[A]ffectional" is defined as "[o]f or relating to the affections; having affections, emotional." (Oxford English Dict. Online (July 2018) <www.oed.com/view/Entry/3346> (as of Dec. 12, 2018), archived at: <https://perma.cc/D5ZS-H8VA>.) Thus we look to the record to determine whether there is evidence that Hosein and Kwan had "frequent, intimate associations" with an expectation of an affectionate, emotional or sexual involvement. (§ 243, subd. (f)(10).)
We note that various courts of appeal have weighed in on the outer boundaries of what constitutes a "dating relationship" under the statute. The term, used both to proscribe and punish violence in intimate partnerships through the Penal Code and also to provide protection by way of a restraining order to victims under the DVPA, is not limited only to " ' "serious courtships," ' " long-term relationships, or exclusive relationships. (Upsher, supra, 155 Cal.App.4th at p. 1322; People v. Rucker (2005) 126 Cal.App.4th 1107, 1116 (Rucker).) On the other hand, it does not apply to " ' "a casual relationship or an ordinary fraternization between [two] individuals in a business or social context." ' " (Upsher, supra, 155 Cal.App.4th at p. 1323, citing Rucker, supra, 126 Cal.App.4th at p. 1117.) The involved parties do not have to describe their relationship as a dating relationship for the court to make the required finding. (See Phillips v. Campbell (2016) 2 Cal.App.5th 844, 851, rehg. den. Sept. 19, 2016, review den. Nov. 9, 2016 (Phillips) [while neither party described the relationship as " 'dating,' " "[t]he trial court drew reasonable inferences from the evidence in concluding that there was a dating relationship."].) On the other hand, the fact the parties are sexually intimate does not, alone, create a dating relationship. (See People v. Shorts (2017) 9 Cal.App.5th 350, 360-361 (Shorts) [defendant and victim had sexual relations one to two times under false pretenses].)
In Phillips, the Court of Appeal examined whether the trial court correctly entered a restraining order under the DVPA, specifically whether the parties had a dating relationship as required by Family Code sections 6211, subdivision (c), and 6301, subdivision (a). (Phillips, supra, 2 Cal.App.5th at pp. 848-849.) The definition of " '[d]ating relationship' " in Family Code section 6210 is identical to that found in Penal Code section 243, subdivision (f)(10). (Phillips, supra, at p. 849, fn. 4.) While Hosein correctly points out the burden of proof for a criminal conviction is higher than for a restraining order under the DVPA, the relevant DVPA provisions and case law are instructive as to the facts supporting a finding of a "dating relationship." We will, of course, consider those facts relative to the appropriate burden of proof in this case. --------
We find the analysis in Upsher instructive here for its discussion of what inferences may reasonably be drawn from the evidence to conclude that two persons share a dating relationship. The defendant and victim were involved in an altercation at 4:30 a.m. at Upsher's house, causing the victim to run from the residence screaming for help. A security guard confronted Upsher when he overcame the victim and pulled her hair after she fell on the street. Upsher was screaming and very emotional; the victim was crying. Upsher referred to the victim as " 'my lady friend,' " " 'my girl,' " and " 'my girlfriend' " during the incident and when he testified at trial. The court of appeal concluded there was sufficient evidence, albeit dependent on inferences, to support the jury's finding that Upsher and the victim were in a dating relationship. Although it appeared from the evidence that the relationship between the two was relatively new, the court found it reasonable for the jury to infer that because the incident of violence occurred when the victim was in Upsher's house at 4:30 a.m., and because Upsher warned the security guard that he should " 'mind his own fucking business,' " the matters between Upsher and the victim were private and personal, not events between social or business acquaintances. The court also noted that Upsher called the victim his " 'girlfriend,' " and that he was fearful that the police would arrest him for domestic violence because of the apparent intimacy between the defendant and victim, both indications that Upsher himself considered himself in a dating relationship. (Upsher, supra, 155 Cal.App.4th at pp. 1322-1324.)
We similarly conclude that although Kwan primarily characterized her relationship with Hosein as a friendship during trial, there is ample evidence in the record—" 'evidence that is reasonable, credible and of solid value' "—supporting the jury's conclusion that the two were in a dating relationship. While the evidence indicates the parties did not have an exclusive intimate partnership, it certainly also shows Hosein and Kwan did not have a " ' "casual relationship" ' " or an " ' "ordinary fraternization." ' " (Upsher, supra, 155 Cal.App.4th at pp. 1322-1323.) Hosein came to Kwan's apartment every day for eight or nine years, frequently spending the night, and using Kwan's personal and intimate items for grooming. Kwan's home also was the scene of Hosein's violence toward her, an intimate location that could cause the jury to conclude that the dispute between the parties was personal and private, not a disagreement between casual social or business acquaintances. From this evidence, the jury also could reasonably infer that the residence was the scene of frequent, intimate associations between Kwan and Hosein.
Hosein and Kwan also had sexual relations over a number of years, not once or twice as the defendant and victim had in Shorts. Moreover, the jury could reasonably conclude that Hosein and Kwan had an expectation of frequent and ongoing sexual intimacy consistent with the statute's definition based on the multi-year duration of their connection. We also agree with the attorney general that Kwan's concern that Hosein could infect her through intimate contact additionally leads to the reasonable inference that Kwan and Hosein had "an expectation of sexual involvement" in the future. (§ 243, subd. (f)(10).)
Hosein and Kwan also presented themselves as engaged in a dating relationship to the outside world. They took trips together. Hosein was able to come and go from Kwan's apartment as he pleased, whether using a key given to him by Kwan, or accessing the residence through a window with Kwan's permission. He evidenced a high level of comfort while at Kwan's home, even ordering pizza on July 9, 2015, despite having been kicked out the night before. As occurred in Upsher, when the police arrived at Kwan's home on July 9, 2015, she told the officers Hosein was her boyfriend in the moments when she was presumably most vulnerable and frightened of him. Consistent with Kwan's description to law enforcement, Kwan's neighbors also believed Hosein lived with Kwan; one referred to Hosein as Kwan's "boyfriend."
One of the dynamics of the trial in this case was defense counsel's attempt to portray Kwan as less than credible regarding the reports of domestic violence because of her purported jealousy of other women involved with Hosein. As a result, a fair reading of the record is that on cross examination, Kwan attempted to minimize the intimate nature of her relationship with Hosein. Nonetheless, Hosein's and Kwan's actions belied Kwan's testimonial characterization of their relationship as a simple "friendship." In addition to the nature of Hosein and Kwan's time spent over the years, Kwan's admitted reactions to Hosein, such as arguing with him about other women, destroying his property, and tracking him using spyware, demonstrated that she felt an emotional or "affectional" connection towards him stronger than a mere friendship. The jury was entitled to conclude that without some significant feeling for Hosein, she would not have engaged in such conduct.
Just as the emotional expressions of the defendant and victim described in Upsher supported the jury's finding that Upsher and the victim were in a dating relationship, Kwan and Hosein's volatility with respect to one another could cause a jury to infer that theirs was a relationship of emotional intensity consistent with a dating relationship. The fact that their interactions were characterized by a negative intimacy attended with violence does not contradict the reasonableness of that conclusion. To the contrary, the evidence demonstrates an emotional involvement between the two over a much longer period than that described in Upsher. This, coupled with their sexual involvement over a period of time, provided sufficient evidence of a dating relationship between Hosein and Kwan to support the jury's verdict.
In short, as was the case in Upsher, "[i]n our view, the evidence recited above and the reasonable inferences that may be drawn from it was sufficient to permit a reasonable jury to conclude [Hosein and Kwan] had enough of an emotional and affectional involvement to constitute a dating relationship within the meaning of section 243, subdivision (e)(1)." (Upsher, supra, 155 Cal.App.4th at p. 1324.) As a result, we will leave the judgment, and the resulting sentence, intact.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Grover, J.