Opinion
D069270
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. LUCINA BELARMINO SAMUELSON, Defendant and Appellant.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Megan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS269143) APPEAL from a judgment of the Superior Court of San Diego County, Dwayne K. Moring, Judge. Affirmed as modified and remanded with directions. Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Megan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Lucina Belarmino Samuelson pleaded guilty to felony vandalism (count 4: Pen. Code, § 594, subds. (a), (b)(1)); possession of methamphetamine (count 5: Health & Saf. Code, § 11377, subd. (a)); and misdemeanor violation of a restraining order (count 6: § 166, subd. (a)(4)).
All further statutory references are to the Penal Code unless otherwise specified.
A jury later found Samuelson guilty of assault with a deadly weapon (count 1: § 245, subd. (a)(1)) and found true allegations that she personally used a deadly weapon (scissors) (§ 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)), as charged and alleged in count 1 of the information. The jury also found Samuelson guilty of battery with serious bodily injury (count 2: § 243, subd. (d)) and found true allegations that she personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)) and personally used a deadly weapon (§ 12022, subd. (b)(1)), as charged and alleged in count 2. The jury also found her guilty of stalking in violation of a court order (count 3: § 646.9, subd. (b)).
On September 18, 2015, the trial court sentenced Samuelson to a total prison term of five years. The court imposed the lower term of two years for Samuelson's conviction of assault with a deadly weapon, plus a consecutive three-year term for the true finding that she personally inflicted great bodily injury. The court stayed sentence under section 654 for her conviction of battery with serious bodily injury and the true findings on the related allegations, and imposed concurrent terms for her convictions of the remaining charges (counts 3-6). Samuelson's timely appeal followed.
Samuelson asserts six contentions on appeal. First, she contends her convictions of assault with a deadly weapon (count 1) and battery with serious bodily injury (count 2) must be reversed because "there was insufficient evidence to support the jury's implicit finding that [she] did not act in self-defense."
Second, she contends that both the count 1 enhancement for great bodily injury (§ 12022.7, subd. (a)) and her count 2 conviction of battery with serious bodily injury (§ 243, subd. (d)) must be reversed because "there was no substantial evidence that [the victim] suffered any significant or substantial injury or serious impairment of a physical function," "[t]here was no evidence of pain," and thus "no rational jury could have found [she] suffered more than a moderate injury."
Third, she claims the court prejudicially erred in instructing the jury under CALCRIM No. 3472 that the right to self-defense cannot be contrived because (1) the giving of that instruction was not justified by the facts, and (2) the version of that instruction given by the court "was . . . a misstatement of the law in that it did not state that if a defendant provoked a fight or quarrel she still would have the right to self-defense if the other person reacted with excessive or deadly force."
Fourth, Samuelson contends the court prejudicially erred in giving the jury a special instruction on when a private citizen may lawfully make a citizen's arrest for a public offense committed or attempted in her presence, because (she asserts) "there was absolutely no evidence that [Alma] was making a citizen's arrest of [her (Samuelson)]."
Fifth, Samuelson claims that both the enhancement for great bodily injury and her conviction of battery with serious bodily injury must be reversed because the evidence showed Alma was injured both when she (Samuelson) stabbed her with the scissors and when she bit her, and the court prejudicially erred in failing to instruct the jury sua sponte on unanimity because there were two distinct acts and types of injuries that could have supported the jury's findings but the prosecution did not make an election.
Sixth, she contends—and the Attorney General agrees—she was erroneously deprived of one day of conduct credit, and thus the abstract of judgment should be corrected to reflect that she is entitled to 79 (not 78) days of conduct credit for time served, and thus she is entitled to a total of 723 (not 722) days of credit for time served in local custody.
We modify the judgment to reflect that Samuelson is entitled to a total of 723 days of presentence custody credit, consisting of 644 days of credit for the actual time she served in local presentence custody plus 79 days of conduct credit. The judgment is affirmed as modified and the matter is remanded with directions.
FACTUAL BACKGROUND
A. The People's Case
Alma R. (Alma) and her husband Herman R. (Herman) (together the R.'s) bought a house in San Diego, and they moved into the house in March or April 2011. Samuelson, who previously had owned and lived in that house, but had lost the house to the R.'s in a foreclosure sale, harassed the R.'s by vandalizing their house and cars soon after they bought the home.
Effective January 1, 2017, rule 8.90(b) of the California Rules of Court requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90(b)(4).) After consideration, we will refer to the victim and her husband, as well as several witnesses, by their first names and last initial, and thereafter by their first names only, in order to provide some measure of anonymity.
Specifically, Alma testified that on April 6, 2011, she was in the open garage standing next to her car and her two-month-old baby was in the rear seat of the car. Samuelson drove up, approached Alma with a hammer, and told her to move out of her (Samuelson's) house. Samuelson then smashed the front right headlight of Alma's car two or three times with the hammer. Alma called her husband, who called the police and, a few weeks later, obtained a restraining order prohibiting Samuelson from harassing the R.'s and their children.
Herman testified that on November 3, 2012, he heard a knock on the door and found a "Three-Day Notice to Perform Covenant or Quit" signed by Samuelson telling Alma and him to "get out of my house." He walked down the driveway and saw Samuelson driving away. Herman called the police, reported the incident, and told an officer he saw Samuelson driving away in a burgundy Nissan Rogue. On another occasion, Herman and Alma received a letter informing them Samuelson had hired a lawyer and telling them they had to vacate the property.
Herman also testified that in the evening on August 17, 2013, when he was upstairs, he heard the sound of breaking glass. He went downstairs and found the window on the garage door had been broken and the frame was dented. Herman found a hammer outside wrapped in a plastic grocery bag, but he did not pick it up. He called the police and an officer picked up the hammer. The police took no action because no one had witnessed the vandalism. A criminalist employed by the Forensic Biology Unit of the San Diego Police Department Crime Lab testified that Samuelson and Herman were both excluded as major contributors of DNA found on the hammer. However, Samuelson was a possible major contributor of the DNA on the bag wrapped around the hammer, and Herman was excluded as a major contributor of the DNA on that bag.
Alma and Herman both testified that the front window of their house was broken on October 25, 2013. They called the police, but nothing could be done as no one saw who committed the crime.
On December 4, 2013, when they returned home, the R.'s found that their front door window had been broken again, and red paint had been splashed on the door, on the inside the home on the other side of the broken window, and on the outdoor furniture. They also found a can of red paint can outside the house. A police officer responded but, although Herman told the officer he suspected Samuelson had committed the vandalism, the officer could not arrest her because there was not enough evidence to prove she had done it. The officer advised Herman to install a surveillance camera. Alma testified she had a surveillance camera installed at her home in order to "have evidence."
Alma also testified that later that month, during the middle of the afternoon on Saturday, December 14, 2013, Samuelson went to Alma's home and vandalized both the house and her van. Specifically, Alma testified she was at home with her eight-year-old daughter in her daughter's upstairs bedroom at that time. Alma heard a noise outside and when she looked out the window, she saw a woman leaving her house and walking away. A surveillance video that was played for the jury showed that the woman walking away from Alma's home was wearing a baseball cap. At trial Alma identified the woman as Samuelson. Alma testified that when she heard the noise, she went downstairs, grabbed a phone, and then went outside to see who the woman was so that, if the woman was Samuelson, she (Alma) could call the police to report that Samuelson was violating the restraining order. In the past, the police had told Alma they were unable to take action unless a witness saw and identified Samuelson. Alma suspected the woman she saw walking away was Samuelson, but she did not know for sure. Alma followed the woman and called to her, but the woman would not turn around. Alma caught up with her, said, "[L]ady, hey," and then tapped her twice on the shoulder to get her to turn around so that the woman would show her face. The woman turned around and Alma saw she was Samuelson.
We take judicial notice that December 14, 2013, was a Saturday.
Alma testified that when Samuelson turned around, she started stabbing Alma with a pair of scissors. Alma put her hand on Samuelson's head to push her back in an attempt to defend herself. Alma testified that Samuelson continued trying to stab her, so she "grabbed [Samuelson] by the hair to move her . . . so that she would throw out the scissors." Samuelson stabbed Alma three times. Samuelson eventually threw down the scissors and then bit Alma on her left forearm, leaving a scar. Alma showed her scar to the jury.
After Samuelson stabbed and bit her, Alma put her foot out, which caused Samuelson to trip and fall to the ground. Alma testified she then "pinned" Samuelson down by putting her knee on Samuelson's chest "so that [Samuelson] wouldn't move and [she (Alma) would] be able to call 911." Alma dropped her phone during the struggle. She testified that while she still had Samuelson pinned to the ground, a boy used his phone to call 911, he handed the phone to her, and she asked the dispatcher to send the police because "[she] had the person who had the restraining order [and who] had been attacking [her] with scissors." While Alma was speaking to the 911 dispatcher and still pinning Samuelson to the ground, Samuelson threatened to kill her and told her to get out of her (Samuelson's) house. Alma then hit Samuelson in the face.
A neighbor eventually came and held Samuelson down until the police arrived, and another neighbor took Alma home to take care of the wound on her hand. The police confirmed that Alma and her husband had an active restraining order against Samuelson.
Alma was taken to the hospital and she spent the night there. Samuelson had stabbed Alma with the scissors twice in the chest and once on the hand. Alma testified that the wound on her hand was so deep it had to be "sewn up."
Alejandro B. testified he was 13 or 14 years old on the day he saw two women (Alma and Samuelson) fighting. He was sitting on a curb with his friends, Alvaro and Andres. Alejandro saw a woman walking on the sidewalk across the street, he heard a sound like a rock hitting a door, and then he saw the same woman—whom he identified at trial as Samuelson—come out of the area of the front door of a nearby house across the street. Alejandro then saw another woman carrying a phone (Alma) exit the house and walk toward Samuelson. Alejandro saw Alma grab Samuelson's shoulder to get her attention and turn her around. Samuelson turned around, Alejandro heard screaming, and then he saw the two women start to fight. Alejandro was still sitting across the street and a few houses down from where Alma and Samuelson were fighting. He saw Samuelson make a "swinging motion" toward Alma immediately after Samuelson turned around, and he saw Alma pin Samuelson onto the ground. Alejandro went across the street and took the scissors from Samuelson as she lay on the sidewalk with her hands pinned by Alma. He threw the scissors in the street.
Alvaro S. testified he was sitting on a curb with his friends, Alejandro and Andres, at the time of the fight. He also testified that a woman across the street—whom he identified at trial as Samuelson—walked to a house, knocked on the door, walked back out, and "popped" with a pair of scissors one of the tires of the car parked in the driveway of that house. Another woman (Alma) came out of the house and started yelling at Samuelson. He saw Alma walk up to Samuelson as Samuelson was walking away and then put her hand on Samuelson's shoulder to try to stop her. Samuelson turned around and Alvaro saw her make stabbing motions toward several parts of Alma's body. When Alejandro crossed the street, Alvaro called 911 and then handed the phone to a neighbor because he did not know the address.
Andres H. testified that as he was sitting with Alvaro and Alejandro on the sidewalk on the day of the incident, he saw a woman (Samuelson) walk up to a house on the opposite side of the street, and he heard what sounded like a knock. As Samuelson was walking away from the house, Andres saw her stab with a pair of scissors the front tire of a car parked in the driveway of that house. As Samuelson was walking away on the sidewalk on that side of the street, Andres saw the owner of the house (Alma) run after Samuelson, put her hand out toward Samuelson's shoulders, and pull the back of Samuelson's hair with her hand. The women started fighting. He saw Samuelson on the ground with Alma on top of her, but he did not see how they got to the ground. Andres and his friends went over there, and Andress saw Samuelson holding the pair of scissors in her hand.
B. Defense Case
Samuelson did not testify and the defense presented no witnesses.
DISCUSSION
I. SUFFICIENCY OF EVIDENCE (JURY'S IMPLIED FINDING
SAMUELSON DID NOT ACT IN SELF-DEFENSE)
Samuelson first contends her convictions of assault with a deadly weapon (count 1) and battery with serious bodily injury (count 2) must be reversed because "there was insufficient evidence to support the jury's implicit finding that [she] did not act in self-defense." We reject this contention.
A. Background
The court properly gave the following modified instruction under CALCRIM No. 3470 on the defense of self-defense with respect to the offenses of assault with a deadly weapon and battery with serious bodily injury charged in counts 1 and 2, respectively:
"Self-defense is a defense to Assault with a Deadly Weapon as charged in Count [1] and Battery with Serious Bodily Injury as charged in Count [2]. The defendant is not guilty of those crimes if she used force against the other person in lawful self-defense. The
defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that she was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to herself or an imminent danger that she would be touched unlawfully. Defendant's belief must have been reasonable and she must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of Assault with a Deadly Weapon as charged in Count [1] and Battery with Serious Bodily Injury as charged in Count [2]." (Italics added.)
B. Standard of Review
When assessing a challenge to the sufficiency of the evidence supporting a conviction, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319.)
C. Analysis
As noted, the court properly instructed the jury under CALCRIM No. 3470 that a defendant is entitled to the defense of self-defense if (among other things) she "used no more force than was reasonably necessary to defend against [an imminent danger of bodily injury to herself or an imminent danger of being touched unlawfully]." The court's instruction explained to the jury that "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation," and "[i]f the defendant used more force than was reasonable, the defendant did not act in lawful self-defense." Samuelson correctly acknowledges on appeal that, "to be entitled to the defense of self-defense, [she] must have used no more force than reasonably necessary to defend against the danger."
The court's instruction also properly told the jury that the prosecution "ha[d] the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense."
Samuelson contends the prosecution failed to meet its burden of proving beyond a reasonable doubt that she did not act in lawful self-defense. She asserts "[t]here was insufficient evidence to support [her] convictions of assault with a deadly weapon and battery with serious injury because the evidence showed that [she] acted in self-defense."
Samuelson did not testify at trial and the defense presented no witnesses. To meet its burden of proving beyond a reasonable doubt that Samuelson did not act in lawful self-defense during the incident at issue here in which she stabbed and bit Alma, the prosecution presented the testimony of four percipient witnesses: Alma, Alejandro, Alvaro, and Andres.
Alma testified she was at home in her daughter's upstairs bedroom when she heard a noise outside, she looked out the window, and saw a woman, whose face she could not see, leaving her house and walking away. Alma went downstairs, grabbed a phone, and then went outside to identify the woman so that she could call the police to report that Samuelson was violating the restraining order if the woman was Samuelson. Alma testified that when she caught up with the woman, she tapped her twice on the shoulder to get her to turn around so that the woman would show her face. When Samuelson turned around, she started to stab Alma with a pair of scissors. Alma testified she put her hand on Samuelson's head to push her back in an attempt to defend herself, and when Samuelson continued trying to stab her, she "grabbed [Samuelson] by the hair to move her . . . so that she would throw out the scissors." Samuelson stabbed Alma three times. Samuelson eventually threw down the scissors and then bit Alma on her left forearm, leaving a scar. Alma showed the scar to the jury. Alma further testified that Samuelson had stabbed her with the scissors twice in the chest and once on the hand. The wound on Alma's hand was so deep it had to be sutured up at the hospital where she spent the night and underwent surgery for the wound on her hand.
A surveillance video played for the jury showed the woman walking away from Alma's home wearing a baseball cap. At trial Alma identified that woman as Samuelson.
Alejandro's testimony shows he was sitting with his friends, Alvaro and Andres, nearby on a curb across from Alma's home when he saw Samuelson approach Alma's house. Alejandro heard a sound like a rock hitting a door, he saw Samuelson come out of the area of the front door of Alma's house, and then he saw Alma come out of her house carrying a phone, and walk toward Samuelson who was walking away on the sidewalk. Alejandro testified that he saw Alma grab Samuelson's shoulder to get her attention and turn her around. The prosecutor asked Alejandro, "When the owner of the home [(Alma)] grabbed [Samuelson's] shoulder, did you see the owner of the home at that time do anything else . . . to [Samuelson]?" Alejandro replied, "No." Alejandro testified he saw Samuelson turn around, and then he heard screaming and watched as the two women started to fight.
Alvaro testified that the "lady that came out of the home" [(Alma)] walked toward Samuelson as she was walking away from the home, and Alma tried to stop Samuelson by putting her hand on Samuelson's shoulder. On cross-examination, Alvaro testified that Samuelson turned around and he saw her make stabbing motions toward several parts of Alma's body.
On cross-examination, Alvaro indicated that although he could not remember whether Alma then hit Samuelson on the back of the head, he acknowledged that he told the police she had done so, and he also acknowledged it was fair to say that what he told the police was the truth.
Last, Andres testified that, as Samuelson was walking away from a house the owner of the house (Alma) ran after Samuelson while yelling at her, and then she pulled the back of Samuelson's hair with her hand. When the prosecutor asked Andress whether "it was hard or soft or something different in terms of the way [Alma] pulled [Samuelson's hair]," Andress testified, "It was not hard," but then he stated, "I don't remember." The court asked Andress, "Was there some movement by [Samuelson's] head to indicate to you that her hair was being pulled or any other type of physical reaction that made you think her hair was being pulled?" Andress responded that "[Alma] pulled it with her hand so that [Samuelson] went back a little." Alvaro testified that the women then started fighting.
Viewing the foregoing evidence in the light most favorable to the judgment, as we must (see People v. Johnson, supra, 26 Cal.3d at p. 578), we conclude the prosecution met its burden of proving beyond a reasonable doubt that Samuelson did not act in lawful self-defense because any rational jury would have found from that evidence that Samuelson used more force than "was reasonably necessary" (CALCRIM No. 3470) and more force than "a reasonable person would [have believed was] necessary in the same situation" (ibid.). The California Supreme Court has recognized that a pair of scissors qualifies as a deadly or dangerous weapon. (People v. Toledo (2001) 26 Cal.4th 221, 226.) Here, the evidence shows, at most, that Alma yelled at Samuelson, grabbed her by the shoulder, pulled her by the back of her hair, and hit her on the back of the head. The evidence established beyond a reasonable doubt that (1) Alma used non-deadly force when she touched Samuelson after Samuelson threw a rock at Alma's house and used the scissors she was carrying to puncture all four of the tires on Alma's vehicle, and (2) Samuelson immediately responded by using deadly force by stabbing Alma with those same scissors. The prosecution's evidence thus established beyond a reasonable doubt that Samuelson, by using more force than was reasonably necessary under the circumstances and more force than a reasonable person would have believed was necessary in the same situation, did not act in lawful self-defense when she stabbed Alma. Accordingly, we reject Samuelson's unfounded contention that "there was insufficient evidence to support the jury's implicit finding that [she] did not act in self-defense."
There is no evidence that Samuelson suffered any bodily injury.
Samuelson expressly acknowledges on appeal that, just before the incident in which she stabbed and bit Alma, she "had . . . thrown a rock at [Alma's] residence and punctured four tires on [Alma's] vehicle."
II. SUFFICIENCY OF EVIDENCE (COUNT 1 ENHANCEMENT FOR INFLICTION OF
GREAT BODILY INJURY AND COUNT 2 CONVICTION OF BATTERY
WITH SERIOUS BODILY INJURY)
Samuelson also contends that both the enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and her conviction of battery with serious bodily injury (§ 243, subd. (d)) must be reversed because "there was no substantial evidence that [Alma] suffered any significant or substantial injury or serious impairment of a physical function," "[t]here was no evidence of pain," and thus "no rational jury could have found [she] suffered more than a moderate injury." We reject this contention.
Section 12022.7 provides for the imposition of enhanced punishment upon a person who personally inflicts "great bodily injury" in the commission or attempted commission of a felony. (§ 12022.7, subd. (a); People v. Jaramillo (1979) 98 Cal.App.3d 830, 836.) Subdivision (f) of section 12022.7 defines "great bodily injury" as a "significant or substantial physical injury." The California Supreme Court has explained that, for an injury to be a "great bodily injury" within the meaning of section 12022.7, there is "no specific requirement that the victim suffer 'permanent,' 'prolonged' or 'protracted' disfigurement, impairment, or loss of bodily function." (People v. Escobar (1992) 3 Cal.4th 740, 750.)
"California courts have long held that 'serious bodily injury,' as used in section 243, and 'great bodily injury,' as used in section 12022.7, are essentially equivalent." (People v. Johnson (2016) 244 Cal.App.4th 384, 391.) For purposes of section 243, "serious bodily injury" means a "serious impairment of physical condition, including, but not limited to, . . . a wound requiring extensive suturing[ and] serious disfigurement." (§ 243, subd. (f), italics added.)
Here, the prosecution presented substantial evidence from which any rational trier of fact could find beyond a reasonable doubt both that Samuelson personally inflicted "great bodily injury" on Alma within the meaning of section 12022.7 when Samuelson committed her felony offense of assaulting Alma with a deadly weapon and that she inflicted "serious bodily injury" on Alma within the meaning of section 243, subdivisions (d) and (f), when she committed her battery-with-serious-bodily-injury felony offense. Specifically, substantial evidence establishes that Samuelson stabbed Alma with the scissors twice in the chest and once on the hand. Alma testified the wound on her hand was so deep it had to be sutured up. The evidence shows Samuelson used the scissors to cut Alma's hand between the thumb and forefinger, and the deep laceration was about one-and-a-half inches long. Alma underwent surgery at the hospital, where she received multiple stitches to close the laceration on her hand. We conclude the foregoing substantial evidence is sufficient to establish that Samuelson personally inflicted on Alma a "significant or substantial physical injury," and thus a great bodily injury, within the meaning of section 12022.7, subdivisions (a) and (f); as well as a "wound requiring extensive suturing," and thus a serious bodily injury, within the meaning of section 243, subdivisions (d) and (f).
In light of our conclusion, we need not decide whether there is substantial evidence to support a finding that the scar on Alma's forearm that she suffered as a result of Samuelson's unlawful act of biting her constituted "a great bodily injury" within the meaning of section 12022.7 or a "serious bodily injury" within the meaning of section 243.
III. INSTRUCTIONAL ERROR (CONTRIVED SELF-DEFENSE)
Samuelson next contends the court prejudicially erred by instructing the jury under CALCRIM No. 3472 that the right to self-defense cannot be contrived, because (she maintains) (1) the giving of that instruction was not justified by the facts, and (2) the version of that instruction given by the court "was . . . a misstatement of the law in that it did not state that if a defendant provoked a fight or quarrel she still would have the right to self-defense if the other person reacted with excessive or deadly force." We reject these contentions.
A. Background
During the jury instructions conference, the prosecutor requested that the court give the following instruction under CALCRIM No. 3472 on contrived self-defense:
"A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
Defense counsel agreed and the court later gave that instruction to the jury.
During her closing arguments, the prosecutor told the jury that "[the defense of] self-defense does not apply if [Samuelson] used more force than was reasonably necessary, which she absolutely did here." She then argued:
"You don't get to bring a knife to a fistfight because self-defense will not apply because that is more force than is reasonably necessary. [¶] So if you don't get to do that, what makes you think you get to bring scissors to the touch of a shoulder or even, best-case scenario, pulling hair. . . . [¶] [T]hat is why self-defense does not apply. [¶] . . . [¶] . . . You do not bring scissors to a touch of a shoulder or even a hit in the back of the head . . . or even a pull of the hair."
The prosecutor then addressed the instruction on contrived self-defense, CALCRIM No. 3472, and argued that Samuelson did not act in lawful self-defense because she provoked the fight with Alma with the intent to create an excuse to use force against her with the scissors she used to stab Alma:
"There's also another instruction. Self-defense cannot be contrived. [CALCRIM No.] 3472 tells you a person does not have a right to self-defense if she provokes a fight or a quarrel with the intent to create an excuse to use force. [¶] I'm going to go to your home. I am going to throw a rock at the window. I'm going to vandalize your tires. I'm going to keep those scissors handy because I know I just committed a crime in the middle of the day, on a Saturday, with your van in the driveway. And I'm ready to attack. [¶] But wait, self-defense. Nope. You cannot have that. Not only is self-defense
not met, but it cannot be contrived. [¶] And of course [Samuelson] had the excuse to use force. She's ready and raring to go with those scissors the moment she turns around. [¶] And that is the crucial moment of whether or not self-defense applies. Not later on. Because the evidence shows you that these stabs happened immediately. Immediately."
B. Analysis
"The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "'A trial judge's superior ability to evaluate the evidence renders it highly inappropriate for an appellate court to lightly question his determination to submit an issue to the jury. A reviewing court certainly cannot do so where . . . the trial court's determination was agreeable to both the defense and the prosecution.'" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.)
We reject Samuelson's contention that "there was no factual basis" for the court's instruction on contrived self-defense under CALCRIM No. 3472. As noted, the court gave that instruction after defense counsel agreed with the prosecutor that the court should give it. Our review of the trial record discloses that the prosecution presented substantial evidence that supported the giving of CALCRIM No. 3472, as Samuelson's trial counsel implicitly acknowledged during the jury instructions conference. Specifically, as discussed more fully in the factual background, ante, the prosecution presented evidence establishing that, at the time of the stabbing incident at issue here, Samuelson was subject to a valid restraining order that ordered her to stay away from Alma and her family. The evidence also shows that in the middle of the afternoon on the day in question, Saturday, December 14, 2013, Samuelson brazenly went to Alma's home armed with a pair of scissors and, as she acknowledges on appeal, she threw a rock at the house and used the scissors to puncture all four tires on Alma's van, which was parked in her driveway. When no one came out of the house, Samuelson started walking away. Alma, who was upstairs in her eldest daughter's bedroom and had heard the noise, looked out the window, and saw a woman walking away from the house. Alma went downstairs and started following the woman, whom she suspected was Samuelson. She called out to the woman in an attempt to get her to turn around so that she could verify the woman was Samuelson. However, ignoring those calls, the woman did not turn around and continued walking as Alma got closer to her. When Alma caught up with her and physically contacted her by (depending on which witness is credited) touching or grabbing her shoulder, pulling the back of her hair, and/or hitting her on the back of the head, Samuelson turned around and immediately started stabbing Alma with the scissors. As we have concluded, the evidence establishes that Alma used nondeadly force and Samuelson immediately responded with deadly force. The only injury Samuelson suffered during the incident was a bruise under her left eye, which she sustained when Alma hit her in the face after Samuelson attacked her with the scissors and after Alma brought her to the ground.
From the foregoing evidence, a jury reasonably could infer that Samuelson provoked the fight with Alma by going to her home in broad daylight, throwing a rock at her house, and puncturing the tires on her van in violation of the restraining order; and that she had done so with the intent to create an excuse to use force against Alma with the scissors that she immediately used to stab Alma as soon as she touched Samuelson. We conclude there was a sufficient factual basis to warrant the giving of an instruction on contrived self-defense under CALCRIM No. 3472.
Samuelson also contends the version of CALCRIM No. 3472 that the court gave to the jury misstated the law in violation of her federal and state constitutional rights to due process and a fair trial because "it did not state that if a defendant provoked a fight or quarrel she still would have the right to self-defense if the other person reacted with excessive or deadly force." (Italics added.) Relying on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), she contends the court should have modified that instruction, and that "[a] more appropriate form of the instruction should have instructed" the jury that:
"If you find that the defendant provoked a fight with the intent to use force, you may not find that defendant's use of force was done in lawful self-defense unless her adversary resorted to excessive force." (Italics added.)
These contentions are unavailing for two reasons. First, to the extent Samuelson is claiming her use of deadly force in stabbing Alma with the scissors was justified because Alma used "excessive force," neither the facts nor the law support her claim. As noted, the court properly instructed the jury under CALCRIM No. 3470 that "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation," and the defendant did not act in lawful self-defense "[i]f the defendant used more force than was reasonable." Here, however "excessive" Alma's actions may have been in grabbing Samuelson's, pulling the back of her hair, and hitting her on the back of the head without inflicting any injury, no reasonable person in Samuelson's situation would believe that the use of deadly force in response was necessary.
Second, Samuelson's reliance on Ramirez is misplaced. In Ramirez the evidence established that the two codefendants had provoked a fistfight with rival gang members. (Ramirez, supra, 233 Cal.App.4th at p. 944.) One of the defendants testified that, during the fight, a rival gang member pulled out what appeared to be a gun, so he pulled out his own gun and shot the rival gang member. (Id. at p. 945.) The trial court instructed the jury with CALCRIM Nos. 3471 and 3472. (Ramirez, at pp. 946, 948.) During closing arguments, the prosecutor repeatedly misstated the law of self-defense by arguing, based on the language of CALCRIM No. 3472, that even if the jury believed the defendants sought to provoke only a fistfight, their intent to use force—even nondeadly fisticuffs—meant they forfeited any claim of self-defense. (Ramirez, at pp. 943, 945-946.) The jury found both codefendants guilty of first degree murder. (Id. at p. 943.)
Ramirez explains that CALCRIM No. 3471 "describe[es] an initial aggressor or mutual combatant's revived right of self-defense if an opponent in a nondeadly confrontation suddenly resorts to deadly force." (Ramirez, supra, 233 Cal.App.4th at p. 948.) CALCRIM No. 3471 states in part: "[I]f the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting." (Ramirez, at p. 946, fn. 1.)
On appeal the Ramirez defendants claimed the trial court erroneously prevented the jury from considering their claims of self-defense by instructing the jury under CALCRIM No. 3472 that "'[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.'" (Ramirez, supra, 233 Cal.App.4th at p. 943.)
Agreeing with the defendants, the majority in Ramirez reversed the judgment, holding that "CALCRIM No. 3472 under the facts before the jury did not accurately state governing law." (Ramirez, supra, 233 Cal.App.4th at pp. 947, 953, italics added.) The prosecutor's repeated misstatement about the law of self-defense was a substantial factor in the decision. Noting that the prosecutor "repeatedly emphasized, under CALCRIM No. 3472's command, 'it doesn't matter' whether under CALCRIM No. 3471 the original victim escalated a nondeadly conflict to deadly proportions" (Ramirez, at p. 950), the Ramirez majority explained that, "[i]n essence, the instructions and the prosecutor's argument erroneously required the jury to conclude that in contriving to use force, even to provoke only a fistfight, defendants entirely forfeited any right to self-defense." (Id. at p. 953.) The Ramirez majority also concluded that, on the facts presented to the jury, the prosecutor's repeated "forceful argument" (id. at p. 952) misstating the law of self-defense, in conjunction with the language of CALCRIM No. 3472, misled the jury regarding the law of self-defense. (Ramirez, at p. 945.)
Ramirez is distinguishable and has no application here because, in that case, the defendants provoked a fistfight with intent to used only nondeadly force, and the rival gang adversary responded with deadly force by pulling out a gun. (Ramirez, supra, 233 Cal.App.4th at pp. 944-945.) Here, Samuelson provoked a confrontation with Alma by vandalizing both her home and van in the middle of the day, Alma at most initiated a fistfight, and Samuelson immediately responded with deadly force by stabbing her with the scissors she was carrying for ready use after using them to puncture the tires on Alma's van.
For all of the foregoing reasons, we conclude the court did not err in giving CALCRIM No. 3472.
IV. INSTRUCTIONAL ERROR (SPECIAL INSTRUCTION ON CITIZEN'S ARREST)
Samuelson further contends the court prejudicially erred in giving the jury a special instruction on when a private citizen may lawfully make a citizen's arrest for a public offense committed or attempted in her presence, because (she asserts) "[t]here was absolutely no evidence that [Alma] was making a citizen's arrest of [her (Samuelson)]." We reject this contention.
A. Background
Over a defense objection, the court instructed the jury that a person may use reasonable force to make a citizen's arrest; that the person arrested has no right to resist a valid citizen's arrest; and that, if the person making the arrest uses unreasonable or excessive force, the arrested person may lawfully use reasonable force to defend herself if she reasonably believes she is in imminent danger of bodily injury or an unlawful touching. Specifically, the court gave the following special instruction over a defense objection that it was "against the evidence that was presented":
"A private person may arrest another person for a public offense committed or attempted in her presence.
"An arrest by a private person is made by actually restraining the person arrested and the person arrested may be subjected to such
restraint as is reasonably needed for her said arrest and continued detention.
"A violation of a Restraining Order is a public offense.
"An individual making a citizen's arrest may use reasonable force to detain the person who has committed a public offense. There is no right to defend against a valid arrest. When a valid citizen's arrest is being made, the person being arrested has a duty not to resist.
"If the person making a citizen's arrest uses unreasonable or excessive force while arresting or detaining another, the person being arrested or detained may lawfully use reasonable force to defend themselves if they reasonably believe that they are in imminent danger of suffering bodily injury or being touched unlawfully.
"The complete elements for a self-defense claim are contained in jury instruction [No.] 3470."
B. Analysis
In support of her contention that the court erred by the giving the special instruction on a citizen's arrest, Samuelson asserts that "[t]here was no evidence presented at trial by any witness that [Alma] was trying to make a citizen's arrest when she instigated the confrontation with [her (Samuelson)]. "
We reject Samuelson's claim of instructional error because the trial record discloses substantial evidence from which a rational jury reasonably could find that, when Alma physically contacted Samuelson and pinned her to the ground while she called 911, Alma was trying to make a citizen's arrest for a public offense Samuelson had committed in her presence. As discussed more fully in the factual background, ante, the evidence shows that, on the day of the incident, Samuelson was subject to a valid restraining order that ordered her to stay away from Alma and her family. The evidence also shows that Samuelson, in violation of that restraining order, went to Alma's home armed with a pair of scissors and, as she acknowledges on appeal, she threw a rock at the house and used the scissors to puncture all four tires on Alma's van. Alma, who was upstairs in her eldest daughter's bedroom and had heard the noise, looked out the window, and saw a woman walking away from the house. Alma went downstairs, grabbed a phone, and started following the woman, who she suspected was Samuelson. Alma testified that she went outside to see who the woman was so that, if the woman was Samuelson, she (Alma) could call the police to report that Samuelson was violating the restraining order. When Alma caught up with Samuelson and physically contacted her, Samuelson turned around and immediately started stabbing Alma with the scissors. Alma put her foot out, which caused Samuelson to trip and fall to the ground. Alma testified she then "pinned" Samuelson down by putting her knee on Samuelson's chest "so that [Samuelson] wouldn't move and [she (Alma) would] be able to call 911." Soon thereafter, a neighbor took over and continued to hold Samuelson down until the police arrived, and another neighbor took Alma home to take care of the wound on her hand.
The court instructed the jury, and Samuelson does not dispute, that a violation of a restraining order is a public offense.
From the foregoing substantial evidence, a rational jury reasonably could infer that, when Alma physically contacted Samuelson and pinned her to the ground while she called 911, Alma was trying to make a citizen's arrest for a public offense (violation of the restraining order) committed in Alma's presence. Thus, we reject Samuelson's claim of instructional error because substantial evidence warranted the special citizen's arrest instruction the court gave to the jury.
V. INSTRUCTIONAL ERROR (FAILURE TO INSTRUCT ON UNANIMITY)
Samuelson next contends that both the enhancement for personal infliction of great bodily injury and her conviction of battery with serious bodily injury must be reversed because (1) the evidence showed Alma was injured both when she (Samuelson) stabbed Alma with the scissors and when she bit her; (2) the scissors wound and the bite were not part of a continuous course of conduct; and (3) the court prejudicially erred in failing to instruct the jury sua sponte on unanimity because there were two distinct acts that could have supported the jury's findings but the prosecution did not make an election. We reject this claim of instructional error.
A. Applicable Legal Principles
"The requirement of [jury] unanimity in criminal cases is of constitutional origin." (People v. Jones (1990) 51 Cal.3d 294, 321, citing Cal. Const., art. I, § 16.) As this court explained in People v. Muniz (1989) 213 Cal.App.3d 1508, 1517, "[i]t is well established that the entire jury must agree upon the commission of the same act in order to convict a defendant of the charged offense."
"When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) "The duty to instruct on unanimity when no election has been made rests upon the court sua sponte." (Ibid.)
However, under the "continuous conduct" rule, a unanimity instruction is not required when "the acts alleged are so closely connected as to form part of one transaction" or "the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (People v. Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz).) "Neither an election nor a unanimity instruction is required when the crime falls within the 'continuous conduct' exception." (People v. Salvato (1991) 234 Cal.App.3d 872, 882 (Salvato).)
"[P]roof of a course of conduct offense will usually consist of evidence of various incidents occurring over a period of time." (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1451). A "continuous course of conduct, by its nature, may stop and start." (People v. Rae (2002) 102 Cal.App.4th 116, 124.)
B. Analysis
The parties agree that the prosecution presented evidence that Samuelson committed two distinct assaultive acts during the altercation: She stabbed Alma with the pair of scissors she was carrying, and she bit Alma on the forearm.
In support of her claim that the court erred by failing to sua sponte give a unanimity instruction, Samuelson first points out that, "[i]n closing argument the prosecutor argued to the jury that the charge of battery with serious injury (Count [2]) was proved by the scissors wound or the bite. The prosecutor [also] argued the great bodily injury enhancement in Count [1] was proved by the bite wound scar on [Alma's] arm or the stab wound to her hand."
Samuelson asserts that "some jurors might have believed the scissors wounds constituted the great bodily injury necessary for the enhancement," but others "might have believed the bite wound was great bodily injury." She also asserts that, "[s]imilarly, some of the jurors may have believed the scissors wounds were the battery with serious bodily injury proving Count [2,] [b]ut some of the jurors might have believed the bite wound constituted the battery with serious bodily injury." Thus, she maintains, "[u]nless the bite and the scissors wound were part of a continuous course of conduct, the trial court had a sua sponte duty to give a unanimity instruction." Samuelson contends her acts of stabbing and biting Alma did not constitute a continuous course of conduct.
The Attorney General responds by arguing that "[Samuelson's] stabbing and biting were part of a single indivisible course of conduct, because the acts 'were so closely connected in time as to form part of one transaction.' [Citation.] The confrontation between [Samuelson and Alma] did not continue over a long period of time, with stops and starts. It was such a flurry of activity that the witnesses all had slightly different perceptions of what happened in what order. No unanimity instruction was required because [Samuelson] assaulted and battered [Alma] in a continuous course of conduct."
Samuelson's claim of instructional error must be rejected because this case falls squarely within the continuous conduct rule discussed, ante. (See Stankewitz, supra, 51 Cal.3d at p. 100; Salvato, supra, 234 Cal.App.3d at p. 882.) Alma's testimony shows that Samuelson committed the assaultive acts in question—the stabbing and the biting—during the altercation that immediately ensued after Alma caught up with, and physically contacted, her. Alma's testimony also establishes that the stabbing and the biting occurred in fairly rapid succession and, although separated briefly in time, were part of a single continuous incident. We conclude the continuous conduct rule applies, and thus the court did not have a sua sponte duty to give the jury a unanimity instruction, because (1) the assaultive acts in question were so closely connected as to form part of one continuous and indivisible course of criminal conduct, (2) Samuelson offered the same defense of self-defense with respect to each of the acts, and (3) there was no reasonable basis for the jury to distinguish between the acts. (Stankewitz, supra, 51 Cal.3d at p. 100.)
During her closing argument, defense counsel told the jury that "[Samuelson] definitely had a right of self-defense," counts 1 and 2 "are basically the same," and "[t]he defenses are the same." --------
VI. ABSTRACT OF JUDGMENT (ERRONEOUS DEPRIVATION OF
ONE DAY OF CONDUCT CREDIT)
Last, Samuelson argues she was erroneously deprived of one day of conduct credit, and thus the abstract of judgment should be corrected to reflect that she is entitled to 79 (not 78) days of conduct credit for time served, and thus she is entitled to a total of 723 (not 722) days of credit for time served in local custody.
The Attorney General correctly acknowledges the abstract of judgment should be corrected to reflect that Samuelson is entitled to 79 days of conduct credit, and thus a total of 723 days of credit, for time served. The Attorney General also requests that the sentencing minutes dated September 18, 2015, "be corrected accordingly." Accordingly, we conclude the judgment should be modified to reflect that Samuelson is entitled to a total of 723 days of presentence custody credit, consisting of 644 days of credit for the actual time she served in local presentence custody plus 79 days of conduct credit.
DISPOSITION
The judgment is modified to reflect that Samuelson is entitled to a total of 723 days of presentence custody credit, consisting of 644 days of credit for the actual time she served in local presentence custody plus 79 days of conduct credit. The clerk of the superior court is directed to amend both the sentencing minutes dated September 18, 2015, and the abstract of judgment to reflect these modifications to the judgment, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.