Opinion
A100772.
10-9-2003
THE PEOPLE, Plaintiff and Respondent, v. SOMPHAN KHONGMAN, Defendant and Appellant.
Defendant was convicted by jury trial of one count of corporal injury to a spouse (Pen. Code § 273.5, subd. (a)). On appeal he contends that the trial court erred by failing to instruct sua sponte on the defense of accident and the lesser included offenses of assault (Pen. Code § 240) and battery (Pen. Code § 242). We find no reversible error and affirm.
Background
Defendant was charged with corporal injury to a spouse based upon evidence of an incident with his spouse, Watana Khongman, on May 13, 2002. Mrs. Khongman testified at trial that defendant returned home drunk on that evening and yelled at her, using "bad language." He approached the victim quickly and she tried to leave through the back door; he followed and the victim fell. She stated that defendant "came so fast, I fell down right there . . . by the door . . . . [¶] . . . [¶] I mean, I fell on the door and then I couldnt get up." She later added, "I was trying to get out the door and after I got out the door, he pushed the door and the door actually hit me and then I fell." She hit her knees on the cement and her head either on a pole or on the wall, sustaining injuries. The victim testified that defendant stepped on her after she fell. Defendant did not push or kick her and she believed the entire incident was an accident.
The victim previously told a different story to the police, saying that defendant hit her on the head with what she believed was his fist, knocking her to the ground. He then kicked her twice, called her a name, and left. The victim also told the investigating probation officer that defendant hit her and injured her head. She testified at trial that she made these statements to the police and probation officer because she wanted them to take defendant away, as he was drunk and getting angry. She was afraid and hated defendant and wanted to see him arrested. Corroborating evidence of the victims injuries was introduced through witnesses and photographs.
Evidence was also introduced, pursuant to Evidence Code sections 1101, subdivision (b) and 1109, of two prior reported incidents of domestic violence by defendant toward the victim; the victim similarly recanted her accounts of those incidents to the police during her testimony here.
Discussion
I.
FAILURE TO INSTRUCT ON DEFENSE OF ACCIDENT
Defendant first contends that the trial court erred by failing to instruct sua sponte on the defense of accident, pursuant to CALJIC No. 4.45. The court is required to instruct sua sponte on defenses on which a defendant relies, or which are not inconsistent with the defendants theory of the case. The court only has a sua sponte duty to so instruct, however, if the defense is supported by substantial evidence. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389-390.)
CALJIC 4.45 provides that "[w]hen a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no][neither][criminal intent [n]or purpose,] [nor] [criminal] negligence,] [he] [she] does not thereby commit a crime."
Assuming the duty to instruct on the defense of accident arose from the victims testimony that she fell after the door, pushed by defendant, hit her and that the entire incident was an accident, we find the error to be harmless. We agree with respondent that the failure to instruct on a defense, if error, is analyzed under a harmless error standard and is not "structural error" requiring automatic reversal. (People v. Breverman (1998) 19 Cal.4th 142, 165.) While Breverman dealt with the failure to instruct sua sponte on lesser included offenses, we find its reasoning equally applicable here. The Breverman court first noted that the failure to instruct sua sponte on lesser included offenses involved, at most, an error of California law alone. The court went on to emphasize that the California Constitution contains a provision specifically addressed to the issue of what constitutes reversible error. Article VI, section 13 provides in pertinent part that "`[n]o judgment shall be set aside for various kinds of error in the conduct of the trial, including `misdirection of the jury and `improper admission or rejection of evidence unless `an examination of the entire cause, including the evidence indicates that the error resulted in a `miscarriage of justice." (Cal. Const., art. VI, § 13, italics added, as cited in People v. Breverman, supra, 19 Cal.4th at p. 173.) Under such circumstances, the court concludes, "`[t]he prejudicial effect of such error is to be determined, for purposes of California law, under the generally applicable reasonable-probability test embodied in article VI, section 13 . . . . [Citation.]" (Id. at p. 174.) Thus "such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. [Citations.]" (Id. at p. 165.) We find that, like the failure to instruct on necessarily included offenses, or upon elements of the charged crime (People v. Flood (1998) 18 Cal.4th 470, 487), or elements of sentencing enhancements that do not increase the penalty beyond the prescribed statutory maximum (People v. Sengpadychitch (2001) 26 Cal.4th 316, 326; People v. Wims (1995) 10 Cal.4th 293, 309, Cal.4th at p. 176), failure to instruct sua sponte upon a defense is not a fundamental structural defect in the mechanism of the criminal proceeding, but rather "a mere trial error, one committed in the presentation of the case to the jury." If the alleged error was, as in Breverman, one under California law alone, we would similarly apply the harmless error analysis in People v. Watson (1956) 46 Cal.2d 818.
It is questionable whether or not the instruction in question was inconsistent with the defense. Defense counsels closing argument focused on the lack of credibility of the complaining victim generally and the insufficiency of evidence to support a finding of guilt beyond a reasonable doubt ("I believe what you can conclude after hearing and seeing all that youve seen today is this: That the basic known about this matter is that the complaining witness isnt reliable enough to base a verdict of guilt [upon] . . . ."), although he did imply that the jury should believe her testimony at trial.
Article VI, section 13 of the California Constitution provides in full: "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
We do not find persuasive defendants citation to preBreverman California case law. The California Supreme Court case defendant cites (People v. Stewart (1976) 16 Cal.3d 133, 141), for example, specifically relies upon People v. Sedeno (1974) 10 Cal.3d 703, 716 for application of a "reversible per se" standard. Sedeno was disapproved (albeit in the context of failure to instruct on lesser included offenses) in Breverman ["[a]s both Wims and Flood make clear, misdirection of the jury . . . is a form of error for which the California Constitution expressly requires an individualized prejudice assessment. [Citations.] . . . [T]he missteps at issue in both Wims and Flood were mere errors in the presentation of the case to the jury, not fundamental structural defects that rendered the proceeding unfair regardless of the evidence. [Citations.] [& para;] Similar principles govern here, and their application requires abrogation of the Sedeno standard of near-automatic reversal." (People v. Breverman, supra, 19 Cal.4th at p. 175.)
Defendant also argues, however, that the failure to instruct here was a violation of the Fourteenth and Sixth Amendments to the United States Constitution. Even if defendants argument that the failure to instruct on accident amounted to a violation of the federal Constitution is correct, we believe the California Supreme Courts analysis in Flood is equally applicable here and that a federal harmless error analysis under Chapman v. California (1967) 386 U.S. 18 would apply. (People v. Flood, supra, 18 Cal.4th at pp. 492-504.) In analyzing the standard of review to be applied when the trial court fails to instruct on an element of the charged offense, the court stated, "instructional errors—whether misdescriptions, omissions, or presumptions—as a general matter fall with the broad category of trial error subject to Chapman review on direct appeal." (Id. at p. 499.) "The foregoing United States Supreme Court decisions lead us to conclude that an instructional error that improperly describes or omits an element of an offense, or that raises an improper presumption or directs a finding or a partial verdict upon a particular element, generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution." (Id. at pp. 502-503.)
We note, as in Flood, that the alleged instruction error here did not prevent defendant from presenting evidence concerning the issue. (See People v. Flood, supra, 18 Cal.4th at p. 503.)
We find that any error here was harmless under either the state or the federal standard. Although the victim recanted her original account of the incident at trial, the jury had evidence of two prior incidents of reported domestic violence by defendant against the victim, reports which she now also recanted. The jury must have discounted and rejected the victims recantation of the charged offense at trial and believed her original account to the police. That account established that the actions leading to her injuries on the date in question (corroborated by independent evidence) were caused by the purposeful acts of violence perpetrated by defendant, rather than by accident. Even though the jury was not instructed specifically on the defense of accident, they were instructed with CALJIC 3.30 (general intent) providing that "When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent . . . . (Italics added.) They were also instructed that the prosecution had to prove, beyond a reasonable doubt, that "a person willfully inflicted bodily injury upon a spouse" and that "[t]he word willfully when applied to the intent with which an act is done . . . means with a purpose or willingness to commit the act . . . in question. [¶] The word willfully does not require any intent to violate the law or to injure another or to acquire any advantage." (Italics added.) Had the jury believed defendant had merely accidentally pushed a door which hit the victim and then accidentally stumbled upon her, they could not, under the instructions given, have found general criminal intent and his actions could not have been willful. Thus even if the failure to give the instruction on accident was error, there was not a reasonable probability that the jury would have reached a different verdict had the instruction been given (meeting the state harmless error standard) and the error was harmless beyond a reasonable doubt under the federal standard.
First we note that the harmless error analysis differs from the determination of whether substantial evidence supports the necessity of giving the instruction in the first place. The Breverman court explained, "Appellate review under People v. Watson, supra, 46 Cal.2d 818, on the other hand, takes an entirely different view of the evidence. Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (People v. Breverman, supra, at p. 177, italics omitted.)
II.
FAILURE TO INSTRUCT SUA SPONTE ON LESSER INCLUDED OFFENSES
Defendant also contends that the trial court erred in not instructing sua sponte on the necessarily lesser included offenses of assault (Pen. Code § 240, subd. (a)) and simple battery (Pen. Code § 242). Respondent concedes that these offenses were necessarily included in the charged offense, but argues that it was not error to omit instructing upon them, as there was not substantial evidence that defendant was guilty only of the lesser crimes.
The obligation to instruct upon lesser included offenses arises when "the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged." (People v. Breverman, supra, 19 Cal.4th at p. 154.) If the evidence supports the conclusion that defendant was, if guilty at all, guilty of the charged offense, instruction upon lesser included offenses is not appropriate. (People v. Speegle (1997) 53 Cal.App.4th 1405, 1416-1417.) Here the jury was presented with two accounts of what happened on the date in question—the victims testimony and her prior statement to the police. Under the former, if the jury accepted the victims testimony that the entire incident was an accident, defendant was not guilty of any crime. Under the latter, defendant was guilty of the charged offense, not of one of these lesser included offenses, as a completed battery occurred (not an assault only), and because corporal injury (bodily injury) resulted. Under these circumstances, the trial court was not required to instruct sua sponte upon the lesser offenses.
Assault is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (CALJIC No. 9.00; People v. Williams (2001) 26 Cal.4th 779, 785.)
Simple battery is defined as the use of force or violence upon the person of another and is subject to an enhanced penalty when it is committed against a spouse (Pen. Code § 243, subd. (e)(1)). Inflicting corporal injury to a spouse, of which defendant was convicted, is distinguished by the infliction of bodily injury.
Even if the failure to so instruct was error, however, we would apply the state or federal harmless error standard of review, as discussed above, and find the error harmless for the reasons there stated.
Disposition
The judgment is affirmed.
We concur: Kay, P.J. and Reardon, J.