Opinion
F072162
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY McCOY, Defendant and Appellant.
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F14910686)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge. R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Peña, J.
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INTRODUCTION
Appellant Michael Ray McCoy stands convicted of one count of corporal injury to a cohabitant, in violation of Penal Code section 273.5, subdivision (a); and three counts of endangering the health of a child, in violation of section 273 a, subdivision (b). It also was found true that McCoy had suffered a prior strike conviction and served two prior prison terms. McCoy contends the trial court erred in failing to instruct the jury with CALCRIM No. 358, evidence of defendant's statements. We affirm.
References to code sections are to the Penal Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
Keishell Brown called the police in response to McCoy's behavior in December 2013, after McCoy physically assaulted her. Brown and McCoy had two children at the time, and she was pregnant with their third. Brown and McCoy had argued and McCoy attacked her, pushing her, punching and kicking her multiple times, and bending her right thumb backwards.
On November 20, 2014, police were dispatched to the apartment of McCoy and Brown in response to a domestic disturbance call. Officer Braden McFarland was given a description of the male involved in the disturbance and McFarland saw a man, McCoy, matching the description walking on an adjacent street. McFarland had his partner detain McCoy while he went to speak with Brown.
When interviewed outside her apartment, Brown was emotional and cried at times. Brown and McCoy were in a relationship and had three children together: a three year old, a two year old, and a four month old. Brown and McCoy had been living together almost six years.
Brown told Officer McFarland that she and McCoy had argued about whether McCoy was cheating on her with another woman. Brown had confronted McCoy in the living room, while the children were present. McCoy denied the accusation and began arguing with Brown. A friend of Brown's called her, with the other woman on the line. Brown placed the call on speakerphone, and the other woman confirmed her relationship with McCoy.
At one point in the argument, McCoy picked up a space heater and threw it at Brown, who was on the sofa holding their four-month-old baby. Brown turned her body to shield the baby, and the space heater struck her in the back of the head. She felt pain and thought she was going to pass out. McCoy then came over to the sofa and punched Brown four times in the back. Brown placed the baby on the sofa and went down to the floor to try and avoid being hit, but McCoy hit her about four more times while she was on the floor.
Brown got up and moved to the hallway, where McCoy hit her again in the forehead. Brown went into the bedroom and closed the door to keep McCoy out, but then exited the bedroom to go and get the baby from the sofa. As she went to try and get the baby, McCoy pushed Brown into the wall three different times and tried to take her cell phone. The two older children were pleading with McCoy to stop and trying to get in between their parents.
McCoy managed to get the cell phone out of Brown's hands, then left the apartment. McCoy returned a couple minutes later in the company of his brother, Jermaine, and handed the cell phone back to Brown.
Brown told Officer McFarland she was scared and believed McCoy was going to injure her. She asked for and accepted an emergency protective order. Brown had a visible bump on her forehead, a bruise on her right thigh, and a bump on the back of her head. There was a broken space heater in the living room.
On November 27, 2014, Brown called the police department to report that McCoy was violating the emergency protective order. Brown spoke with Officer Johnny Soto and told him she had received a letter from McCoy. In the letter, McCoy apologized for his behavior, told Brown he had not cheated on her, and people had lied to her. McCoy also called Brown from jail and when Brown told him not to call her, McCoy threatened that he would be coming to get her when he got out of jail.
McCoy was charged with corporal injury to a cohabitant and three counts of misdemeanor cruelty to a child by endangering health. It also was alleged that McCoy had a prior strike conviction and had served two prior prison terms.
At trial, Brown claimed McCoy threw the heater at the wall, not her, and that she did not sustain any injuries caused by McCoy. She claimed McCoy did not push or hit her, and that she got the lump on the back of her head as a result of a fall at work. Brown admitted visiting McCoy in jail 37 times between his arrest and the start of trial.
The parties stipulated that McCoy previously was convicted of violating section 243, subdivision (e)(1) on March 11, 2009.
The jury found McCoy guilty of all four charges. McCoy waived his right to a trial on the prior conviction and prior prison term allegations, and admitted the allegations.
The trial court denied McCoy's motion to dismiss the prior strike and denied the motion to reduce the section 273.5 conviction to a misdemeanor. The trial court did, however, dismiss the prison priors pursuant to sections 1170.18 and 1385.
McCoy was sentenced to the upper term of four years for the section 273.5 offense, doubled to eight years because of the prior strike. On the misdemeanor child cruelty charges, he was sentenced to 532 days in jail with credit for time served.
McCoy filed his appeal on August 18, 2015.
DISCUSSION
On appeal, McCoy contends the court had a sua sponte duty to instruct the jury with CALCRIM No. 358, which states:
"You have heard evidence that the defendant made [an] oral or written statement[s] (before the trial/while the court was not in session). You must decide whether the defendant made any (such/of these) statement[s], in whole or in part. If you decide that the defendant made
such [a] statement[s], consider the statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statement[s].
"[Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.]"
McCoy argues the court had a sua sponte duty to give this cautionary instruction because of inconsistent evidence of whether he called Brown and threatened to "get" her. McCoy argues the court's failure to give this instruction was prejudicial because Brown's credibility was called into question at trial, her statements were uncorroborated and unreliable, and the statements attributed to him were highly prejudicial.
The purpose of CALCRIM No. 358 is "to aid the jury in evaluating whether the defendant actually made the statement ...." (People v. Diaz (2015) 60 Cal.4th 1176, 1184 (Diaz).) "[T]he cautionary instruction applies to any extrajudicial oral statement by the defendant that is used by the prosecution to prove the defendant's guilt - it does not matter whether the statement was made before, during, or after the crime, whether it can be described as a confession or admission, or whether it is a verbal act that constitutes part of the crime or the criminal act itself." (Id. at p. 1187.)
Diaz held "the cautionary instruction is applicable when the statements at issue are criminal threats," and the instruction should be given on request in an appropriate case. (Diaz, supra, 60 Cal.4th at p. 1181.) However, Diaz held "the trial court is no longer required to give the instruction sua sponte" because the courts "are now required to instruct the jury, in all criminal cases, concerning the general principles that apply to their consideration of witness testimony. [Citation.]" (Id. at pp. 1181, 1190-1191.) Diaz further held the instructions on witness credibility, such as CALCRIM No. 226, were sufficient to inform the jury "of the need to evaluate the witnesses' testimony for possible inaccuracies and determine whether the statement was in fact made." (Id. at p. 1196.)
Diaz declined to decide whether the new rule was retroactive because the omission of the cautionary instruction in that case was not prejudicial. Diaz held the standard for review was whether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given, pursuant to People v. Watson (1956) 46 Cal.2d 818. (Diaz, supra, 60 Cal.4th at p. 1195.) " 'Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the [statements] were repeated accurately.' [Citation.]" (Ibid.) Diaz further held the failure to give the cautionary instruction was not a violation of federal due process warranting the more stringent standard of review for federal constitutional error. (Ibid.)
In this case, it is a close question whether there was evidence to even support the instruction. As Diaz explained, the failure to give the instruction is not prejudicial if there is no conflict "in the evidence about the exact words used, their meaning, or whether the [statements] were repeated accurately.' [Citation.]" (Diaz, supra, 60 Cal.4th at p. 1195.)
At trial, Brown recanted some of her previous statements to law enforcement officers about the nature and circumstances of McCoy's various assaults on her. As to McCoy's telephonic threat from jail, however, Brown's testimony appeared consistent with her previous report that such a threat was made. Officer Soto testified that Brown called the police department on November 27, 2014, and said she was staying with a friend, and she was afraid to stay at home in case McCoy got out of jail. Brown reported that she had received a letter from McCoy, who was in jail. In the letter, McCoy apologized for his behavior, told Brown he had not cheated on her, and people had lied to her. !(RT 263-264)! Brown also reported that the previous day, she received a telephone call from a number that she did not know. When she answered, an unknown male asked for her by name. When she identified herself, McCoy came on the line. Brown told him that he should not be calling her, and not to call her anymore. Brown stated that McCoy became upset and "told her that as soon as he got out of jail, he would be coming to get her." Brown said she handed the phone to her friend at that point. (Italics added.)
At trial, Brown testified on direct examination that she received a telephone call from an unknown male who asked for her by name, and defendant then came onto the line and she recognized his voice.
"Q. Did you also tell the officer that you told the defendant that he shouldn't be calling you and you wanted nothing to do with him? Yes or no, did you tell the officer that?
"[Brown]. Yes.
"Q. Is that what happened?
"A. That I didn't want to have nothing to do with him?
"Q. Yes.
"A. Yes.
"Q. So you did speak with him?
"A. Yes, the officer.
"Q. No, did you speak with the defendant?
"A. Well, I answered the phone, I said hello, he asked if it was me, and the phone was taken out of my hand and Dre finished the call.
"Q. Okay. Do you also remember telling the officer that after saying you wanted nothing to do with the defendant, he became upset and told you that as soon as he gets out of jail, he'll be coming to get you for putting him there? Did you tell the officer that?
"A. No. I told the officer that he said he was going to get me. I did not say all of that.
"Q. Okay. So as you sit here today, you recall the statement from the defendant that he'd be coming to get you?
"A. Yes." (Italics added.)
On cross-examination, Brown testified as follows:
"Q. And you said you did receive a phone call from someone; is that correct?
"A. Correct.
"Q. And at that point when you received this phone call, you said [defendant] came on the phone or -
"A. Yes.
"Q. Did you answer the phone at that point or did Drea [sic] have the phone?
"A. I said hello and she took the phone.
"Q. Okay, did you hear their conversation?
"A. No.
"Q. All right. So you never heard [defendant] say, when I get out of jail I'm going to come beat your ass or hurt her, or what did he say?
"A. No.
"Q. 'No' you did hear it or 'yes' you did?
"A. No, I did not hear that." (Italics added.)
The trial record could be interpreted to reflect that Brown clarified that while she did not tell Officer Soto that McCoy's threat carried the obvious condition that he would carry it out when he got out of jail, her testimony may have been consistent with her prior statements to Officer Soto - that McCoy called her while he was in jail and he said was going to "get" her.
In any event, the court did not have a sua sponte duty to give CALCRIM No. 358. Diaz was decided on April 6, 2015 (Diaz, supra, 60 Cal.4th 1176), and McCoy's trial began on June 11, 2015. McCoy was not charged with criminal threats, and none of the charged offenses required proof that he made a criminal threat. McCoy did not request CALCRIM No. 358; the People initially requested it but later withdrew the request. Moreover, the court thoroughly instructed the jury with CALCRIM No. 226 and other instructions on how to evaluate witness testimony and evidence, including how to evaluate testimony for possible inaccuracies and determine whether the statement was in fact made.
DISPOSITION
The judgment is affirmed.