Opinion
D080313
09-18-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTONYIO SHAWN MELVIN, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE397831 John M. Thompson, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
CASTILLO, J.
A jury convicted Antonyio Shawn Melvin of two counts of misdemeanor child abuse and one count of simple assault for striking his daughter in the head, apparently with the metal part of a belt. Melvin appeals those convictions on three grounds. We disagree with each argument.
First, the trial court properly reopened the prosecution's case-in-chief to permit Melvin's daughter, J.M., to testify when she showed up to court unexpectedly after the close of evidence. The prosecution did not arrange for J.M. to arrive late for tactical advantage. To the contrary, the prosecution tried, without success, to have J.M. testify earlier. Despite the late stage of proceedings, the importance of direct victim testimony warranted allowing the jury to hear from J.M. And the trial court instructed the jury to weigh direct and circumstantial evidence equally and assess each witness's credibility, reducing the likelihood the jury would give J.M.'s late testimony undue emphasis.
Second, substantial evidence supported Melvin's convictions. The jury heard a recording of a 9-1-1 call from shortly before J.M. received her head injury in which Melvin threatened to beat his wife and the wife told Melvin to leave J.M. alone. Two years later, during trial, J.M. testified that Melvin did not hit her and she could not remember how she got hurt. The jury, however, could reasonably discredit that testimony in favor of J.M.'s statement the day of the incident that she was hit with the metal part of a belt. Based on the evidence presented, the jury could logically infer that Melvin intentionally struck J.M. with the metal end of his belt.
Third, the trial court did not err when it gave the standard flight jury instruction. Melvin was present and threatening violence before J.M.'s injury but was gone by the time officers arrived on the scene. Melvin's absence, even after an officer tried to contact him, suggested awareness of guilt.
Therefore, we affirm the judgment.
I.
A.
"I'll beat your ass," Melvin threatened. "Leave her alone Tony." A call to 9-1-1 recorded this argument between Melvin and his wife, T.M., early in the morning on October 24, 2019. Their fight centered around their 15-year-old daughter, J.M.
The day before, J.M. had skipped school and basketball practice to spend time with a boy. She did not answer her phone and returned home later that night.
Early the next morning, Melvin and T.M. argued about waking up J.M. to make her "go running" as punishment for missing practice. At one point, T.M. called 9-1-1 to report that she "need[ed] the police." The 9-1-1 call picked up Melvin's voice in the background. He threatened, "I'll beat your ass! I'll guarantee you." Melvin must have turned his attention to J.M. because T.M. told him to "[l]eave her alone." Melvin and T.M.'s fighting awakened J.M. and prompted her to "lunge[ ]" between her parents.
J.M. then received a blow to the head that drew blood. Not long after, officers from the San Diego County Sheriff's Department reached the house. The officers encountered J.M. holding a bloody towel to her head. J.M. told officer Dylan Olguin that "something" hit her. After a woman interjected that Melvin hit J.M. with a belt, J.M. explained that Melvin hit her "[w]ith the metal part."
By the time officers arrived at the house, T.M. and J.M. were present, but not Melvin. One officer testified that, when she "first arrived," "[t]hey hadn't gone into the house yet." (Italics added.) Olguin tried to find Melvin and called Melvin's phone numerous times without success.
B.
At trial in September 2021, the prosecution wanted J.M. to testify. A district attorney investigator tried to contact J.M., still a minor, through her mother. Despite multiple subpoenas, T.M. informed the investigator that her daughter "would not be available." As a result, by the time both parties rested, J.M. had not testified.
When the parties rested, the trial court gave jury instructions. Over Melvin's objection, the trial court instructed the jury that, if they found that Melvin "fled or tried to flee" after the crime, such conduct "may show that he was aware of his guilt." The trial court left it to the jury to "decide the meaning and importance" of any flight, but it cautioned that flight evidence "cannot prove guilt in and of itself."
On the day allotted for closing arguments, J.M. appeared in court asking to be heard. The prosecutor assured the trial court that J.M. "came here on her own accord without any interference from the People," which the trial court "fully believe[d]." The trial court granted the prosecution's motion to reopen to allow J.M. to testify. On the witness stand, J.M. denied that Melvin swung his belt to hit her and claimed not to remember what made her head bleed on the day at issue.
After deliberating, the jury found Melvin guilty of two counts of misdemeanor child abuse (Pen. Code, § 273a, subd. (b)), one count of simple assault (§ 240), and other charges not challenged on appeal.
II.
Melvin raises three distinct issues on appeal. We address each argument in turn.
A.
Melvin first contends that the trial court abused its discretion when it permitted the prosecution to reopen its case-in-chief to allow J.M. to testify. We disagree.
Trial courts have broad discretion to reopen a case for additional evidence. (People v. Riley (2010) 185 Cal.App.4th 754, 764 (Riley).) When reviewing for abuse of discretion, we consider the following factors:
(1) the stage of proceedings when the party moved to reopen;
(2) the moving party's diligence in discovering and presenting the new evidence;
(3) the prospect that the jury would give the new evidence undue emphasis; and
(4) the significance of the evidence. (People v. Homick (2012) 55 Cal.4th 816, 881 (Homick).) A trial court may reopen a case "so long as the court is convinced that the failure to present evidence on the issues was a result of 'inadvertence or mistake on the part of the prosecutor and not from an attempt to gain a tactical advantage over [the defendant].'" (People v. Goss (1992) 7 Cal.App.4th 702, 708.)
We find no abuse of discretion here. Significantly, the prosecutor did not orchestrate J.M.'s late appearance to gain any tactical advantage over Melvin. It tried to have J.M. testify earlier without success. At some point, J.M. changed her mind to testify, but not through the prosecution's influence. The day J.M. showed up to court, the prosecutor represented that J.M. "came here on her own accord without any interference from the People," which the trial court "fully believe[d]." Melvin admits that no evidence suggests otherwise. Thus, the delay did not stem from the prosecution's fault or tactics.
The factors listed in Homick support the trial court's decision to reopen the case. First, although both parties had rested and the trial court had instructed the jury, the motion to reopen came before closing arguments and the start of jury deliberations. (Compare Riley, supra, 185 Cal.App.4th at pp. 759-760, 767 [motion granted after both sides rested] with People v. Funes (1994) 23 Cal.App.4th 1506, 1520 [motion denied after jury already deliberated for nearly a full day])
Second, as discussed above, the prosecution diligently tried to subpoena J.M. earlier without success. The prosecution moved to reopen as soon as J.M. appeared in court willing to testify.
Third, we are not persuaded that the jury gave J.M.'s testimony undue weight. The trial court instructed the jury to assess witness credibility and not give direct or circumstantial evidence any greater weight than the other. "We presume the jury followed these instructions." (People v. Lindberg (2008) 45 Cal.4th 1, 26.)
Fourth, the undisputed significance of J.M.'s perspective, as the only victim willing to testify, favored reopening the case. (See Homick, supra, 55 Cal.4th at p. 881 [motion to reopen to hear insignificant evidence denied].)
We disagree with Melvin's claim that the trial court "completely failed" to consider these factors. To start, "the reviewing court considers" these factors to assess a claim of abused discretion; they are not necessarily a list that the trial court must read into the record. (Homick, supra, 55 Cal.4th at p. 881, italics added.) Besides, the record indicates that the trial court did consider these topics when evaluating the motion to reopen. For example, when Melvin objected that J.M.'s testimony came "way too late in the process," the trial court observed that her testimony would address Melvin's earlier protest about the lack of victim witnesses, which acknowledged the stage of proceedings and the importance of J.M.'s testimony. We thus conclude that the trial court properly exercised its discretion to reopen the case to permit J.M. to testify.
Regardless, any error was harmless. J.M.'s testimony was not the lynchpin for Melvin's challenged convictions. If anything, it weakened the prosecution's case because J.M. claimed no memory of how she got hurt and denied that Melvin hit her with his belt, contradicting her October 24, 2019 statement. Thus, it is not reasonably probable that Melvin would have obtained a more favorable trial result absent J.M.'s testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B.
Next, Melvin challenges the sufficiency of the evidence for his misdemeanor child abuse (counts 1-2, § 273a, subd. (b)) and simple assault (count 3, § 240) convictions. Misdemeanor child abuse requires proof that Melvin "willfully" inflicted "unjustifiable physical pain or mental suffering" on J.M., a minor. (§ 273a, subd. (b).) Simple assault is the "unlawful attempt, coupled with a present ability, to commit a violent injury" on another. (§ 240.) Relevant here, the jury had to find that Melvin willfully performed an "act that by its nature would directly and probably result" in applying force to J.M. (People v. Harring (2021) 69 Cal.App.5th 483, 503.)
On appeal, we presume the judgment is correct. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) We thus review the entire record in the light most favorable to the judgment to decide if substantial evidence- reasonable, credible evidence of solid value, even if circumstantial-would allow a rational factfinder to find the defendant guilty beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792.) At trial, if circumstantial evidence allows the jury to draw two reasonable conclusions, one suggesting guilt and the other innocence, the jury must accept the innocent interpretation. (Id. at pp. 792-793.) On appeal, however, we "must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
We conclude that a rational jury could infer from the circumstantial evidence that Melvin willfully injured J.M. When T.M. called 9-1-1, the operator's recording captured Melvin threatening, "I'll beat your ass!" During the call, T.M. told Melvin to leave their daughter alone. While T.M. and Melvin argued, J.M. "lunged" between them. She then started bleeding from a wound to her head. Soon after her injury, J.M. explained to an officer that Melvin hit her with the "metal part" of a belt.
Melvin rejects the conclusion that he willfully injured J.M. as "pure conjecture" because (1) J.M. later disavowed her earlier statements; and (2) other "[e]qually probable" explanations exist, like that J.M. fell or her mother hit her. But the jury could reasonably choose to believe J.M.'s contemporaneous statements over her in-court testimony and find, based on the substantial circumstantial evidence, that Melvin willfully applied force to J.M. that caused her unjustifiable physical pain. Substantial evidence therefore supports the verdicts on these counts.
C.
Lastly, Melvin seeks reversal because, in his view, the trial court erred when it gave the standard flight instruction, CALCRIM No. 372.
We review jury instructions de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) An instruction is proper so long as the record contains some evidence that, if believed by the jury, would support the suggested inference. (People v. Alexander (2010) 49 Cal.4th 846, 921.) To suggest consciousness of guilt, flight requires" 'a purpose to avoid being observed or arrested.'" (People v. Visciotti (1992) 2 Cal.4th 1, 60 (Visciotti).)
Here, contrary to Melvin's assertion, the record contains sufficient evidence to warrant the flight instruction. When T.M. called 9-1-1, Melvin was in the house making threatening statements. Between the 9-1-1 call and when officer Olguin arrived shortly after, J.M. got between her parents and received a bloody head wound. By the time Olguin responded to the house, Melvin was gone. Olguin tried to locate him and "made numerous attempts to call his phone," but Melvin never answered. That Melvin left his house right after his daughter got injured and refused to respond to Olguin's outreach "logically permits an inference that his movement was motivated by guilty knowledge." (People v. Turner (1990) 50 Cal.3d 668, 694.)
Melvin asserts that "the police admitted that they did not search the entire residence," leaving open the possibility that Melvin did not flee and instead remained in the house. He fails, however, to provide a record cite for that admission, and we did not find one in our own review of the record. Although an officer testified that, when she arrived on the scene, officers "hadn't gone into the house yet," the record is silent about whether they later searched the house. (Italics added.) The jury could reasonably credit Olguin's testimony to show Melvin's flight.
Even if the trial court erred when it gave the flight instruction, any error was harmless. Melvin's due process argument does not persuade us because "[c]ourts have consistently rejected similar challenges to standard flight instructions." (People v. Pettigrew (2021) 62 Cal.App.5th 477, 500.) The instruction did "not assume that flight was established, leaving that factual determination and its significance to the jury." (Visciotti, supra, 2 Cal.4th at p. 61.) The trial court also instructed the jury to disregard inapplicable jury instructions, and thus "mitigated the potential for prejudice from [an] erroneously given flight instruction." (Pettigrew, at p. 502.) If the jury found that Melvin fled, that fact alone could not prove guilt because the jury had to "decide the meaning and importance of that conduct." Based on the evidence discussed in section II.B., "we find it was not reasonably probable [Melvin] would have fared any better had the trial court not given the flight instruction." (Ibid.)
III.
We affirm the judgment.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.