Opinion
H047456
11-19-2021
THE PEOPLE, Plaintiff and Respondent, v. ELIAS SEGOVIA, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 18CR007792
LIE, J.A jury convicted defendant Elias Segovia of inflicting corporal injury on Jane Doe, with whom he had a dating relationship (Pen. Code, § 273.5), and disobeying a temporary restraining order issued for Doe's protection (§ 273.6).
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, Segovia argues: (1) the trial court erroneously admitted evidence that (a) Segovia may have owned a gun and (b) Doe's mother was undergoing open-heart surgery; (2) the prosecutor committed misconduct in closing argument by evoking sympathy for Doe based on her mother's ill health and by misstating the evidence; and (3) the trial court failed to adequately answer a jury question on the element of willfulness. Segovia further contends that the trial court abused its discretion by not reducing his domestic violence conviction from a felony to a misdemeanor.
We reject Segovia's substantive claims but vacate the imposition of fees pursuant to section 1465.9 and Government Code section 6111.
I. BACKGROUND
A. Trial Evidence
1. Prosecution Case
Jane Doe and Segovia met in Monterey County at a medical center where both were employed. They started dating, and Segovia moved in with Doe for a few months in 2017.
Consistently with how she was referenced throughout the trial, we refer to the victim as Jane Doe or Doe to protect her personal privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)
Over the course of the off-and-on relationship, according to Doe, "[t]here was a lot of arguing[, and] [Segovia] would accuse [her] of a lot of things that weren't true." Segovia "never seemed to trust" Doe and "was always accusing" her of being unfaithful. Doe estimated that Segovia baselessly accused her of infidelity "50 to 100 times." Doe authenticated a number of text exchanges with Segovia in which he called her a "whore" or a "slut" and accused her of cheating on him. Segovia routinely accused Doe of cheating when (1) she did not answer her phone; (2) she was not in her office when he stopped by to visit; and (3) someone "liked a post or a picture" on her Facebook page. Segovia would spontaneously accuse her of cheating on him with people she had previously dated, including the father of her two children. The couple broke up and reconciled approximately three times over the year and a half that they dated.
Segovia's payment of some of Doe's expenses-in particular his purchase of a mobile phone for Doe and his payment for phone service-was a common feature of the couple's arguments. Doe testified: "Any time he was upset about anything, he would use the phone" as leverage. "If he didn't like something I did, if he didn't like that I didn't respond how he wanted me to, anything that he purchased for me, he would threaten to take it back or to stop paying on or things of that nature. [¶] He would always use the phone. That was the first go-to for everything. I take a picture with somebody, he's going to turn the phone off. Somebody liked a post on Facebook, he's turning the phone off or taking it back. It was always used as a form of control." Segovia occasionally also threatened to take back furniture he had replaced for Doe during their brief cohabitation and to cancel payments for Doe's daughter to play in a softball league.
Doe testified to two prior uncharged acts of domestic abuse. In the fall of 2017, Segovia grabbed Doe during an argument, and Doe reacted by slapping him. On another occasion, Segovia pushed Doe against the wall with his forearm "in a fit of anger." Doe suffered a cut on the inside of her lip as a result. In a text message on December 7, 2017, Segovia wrote of this incident, "I'm so sorry I hurt you physically and verbally. I'm so ashamed of how I've treated you."
a. The March 29, 2018 Incident
The afternoon of March 29, 2018, Doe was speaking with Segovia by phone. During their conversation, Doe told Segovia she loved him, and Segovia did not respond in kind. He then became upset when Doe interrupted him, so he hung up on her. "[T]hat was . . . the straw that broke the camel's back" for Doe, who then texted Segovia, "And you still didn't say it back, thanks." Segovia texted back the phone number for her daughter's softball coach. Doe replied, "I'm cool dude. Just leave me alone for real. I'm done." Segovia answered, "Okay. I'm sure you have someone already."
Soon after this text exchange, Doe drove to the medical center with her oldest daughter (Doe 2) to pick up flowers she planned to bring her mother. Earlier that day, Doe had told Segovia she would be going to the medical center for this purpose, and as she parked at the curb, she noticed Segovia's truck parked farther ahead. When Doe's daughter went into the building, Segovia left his truck and approached the open driver's window of Doe's car.
We adopt the trial court's reference to Doe's daughter as Doe 2. (See Cal. Rules of Court, rule 8.90(b)(4).)
Segovia looked frustrated and asked why Doe was ending their relationship. Doe told him she "was tired of this, same old thing always happening[, ]" so Segovia told her to give him back the phone. He took the cigar Doe was smoking from her mouth, tossed it away, and grabbed her by the chin, saying, "Where's that fucking phone?" He reached into the car and "dove" halfway through the window.
As Doe tried to push Segovia out of the car, they initially struggled for control of her car keys. Segovia then began to ransack the car's center console. In doing so, Segovia's flailing arms and elbows hit Doe in the face. To keep Doe from pushing him out of the car, Segovia used his elbow to pin her left arm against the car door, then grabbed her left forearm with his hand, each time using force that Doe rated as 10 on a 10-point scale. Doe 2 returned to see Segovia angrily, "yelling, screaming . . . 'Give me, give me[.]'" Doe 2 went to get help. Doe herself was yelling for help and honking her car horn.
Finding no phone in the center console, Segovia began grabbing at Doe's clothing, her belt, and her pants, "just anywhere his hands could just grab" in search of the phone. With her left arm immobilized and her right hand keeping her car keys out of Segovia's reach, Doe had no way to fend him off. So when his face neared hers, she bit his right cheek, drawing blood.
Segovia immediately withdrew. He went to his truck, telling Doe he was going to call the police. Doe left her car, going toward the hospital to find security. Segovia then went after her and used his raised arm to "bulldoze" her off balance and against a concrete wall.
After speaking with building security and a 911 dispatcher, Doe waited about an hour for the police to respond. Before they arrived, she left to go visit her mother, who was having open-heart surgery the following morning.
The altercation in her car left Doe with several scratches on her face and a laceration inside her upper lip where Segovia had elbowed her in the mouth. She also had bruises and scratches on her left arm.
Photos of Doe's injuries-taken by a security guard and a nurse at the scene, by Doe in the following days, and by police on April 2-were admitted in evidence. Digital video of the incident from a surveillance camera at the medical center was also admitted.
b. Subsequent Communications and Restraining Order
Two days after the incident, Segovia sent Doe the following text:" 'I'm so sorry I made you afraid of me, enough you felt biting me was your escape. I forgive you for doing that. Please forgive me for my actions. When you broke up with me via text, it really freaked me out. 45 minutes earlier you told me you loved me." "I know the phone is your only communication with your girls and family. I guess it's the only way I think I can have some kind of control over you. You told me that once. Baby, I'm not going to use the phone card anymore. I'm giving you the phone, paying for it until the contract ends, no question.'" Segovia went on to say he still loved her and wanted to reconcile. Doe did not respond. Segovia continued to text Doe over the next several days and repeated his apology; he also sent her photos of his own injured cheek.
Four days after the incident, on April 2, 2018, Doe went to the police station to make her report. That same day, Doe obtained a temporary restraining order (TRO) which prohibited Segovia from contacting her. Segovia was served with the TRO on April 4, 2018. Two days after service, Segovia sent a text to Doe, saying he wanted to give her $100.
2. Defense Case
Segovia testified on his own behalf. On March 29, 2018, after ending his regular shift as a maintenance mechanic at the medical center, he remained on call and was summoned back for a job sometime after 4:30 p.m. In an earlier telephone conversation that day, Doe was upset because, after telling him she loved him, he failed to reciprocate. Five minutes after the call, Doe texted," 'Wow, you can't even tell me back?'" When Segovia did not respond to the text, Doe texted again, this time saying that she wanted to break up.
After completing his work order, Segovia returned to his truck and saw that Doe had pulled up behind it. He went to talk to her because he "didn't understand[, ] . . . one minute she's telling me she loves me. 45 minutes later she wants to break up with me." They spoke for three or four minutes, then he started to walk back to his truck. But Doe was "yelling at [him] from her car, cussing at [him]." Seeing that Doe was on the phone that he was still making payments on, Segovia returned to her car and told her to give it back to him. He "was just ready to move on, and . . . wasn't going to pay for the phone . . . and for the service." Doe had the phone in her right hand and kept it out of his reach by stretching her arm over the passenger seat.
Telling Doe again to give him the phone, Segovia reached into her car. He grabbed only at the phone, but Doe bit him on the face. Segovia immediately backed out of her car in shock. He went to his truck to wipe the blood off his face but returned to Doe's car to share his feelings. He also told her he was calling 911, and she begged him not to. Segovia walked away again and dialed 911, but eventually hung up because of Doe's entreaty.
Seeing Doe walk toward the building, Segovia followed, telling her again to give him the phone because he was "done with" her. It was Doe who was angry and "carrying on." He was walking toward her with his hand out when they "hit [their] hips together." Segovia denied extending his arms or pushing her into the wall and testified that he did not see himself do so in the video. Segovia further maintained that the surveillance video had been misleadingly edited.
Segovia returned to his truck and spoke to two security guards who had responded. He told them Doe had bitten him but that "everything was already . . . done." Segovia left and went home.
Segovia denied ever hitting or slapping Doe, grabbing her by the face, or taking a cigar from her mouth during this encounter. Photos he took of the bite mark on his face were admitted into evidence.
As for Doe's allegations of prior abuse, Segovia testified that in the first incident, it was Doe who had hit him and that he never grabbed her. As to the second, Segovia said that after an argument, he commented on Doe's weight, which caused her to charge at him and grab his testicles. He pushed her away in self-defense and left immediately. Segovia admitted later sending a text message apologizing for "hurt[ing] her physically and emotionally[, ]" but testified that he "didn't mean hurt [her] physically." Instead, he meant "hurt . . . her feelings" because "she's said mean, nasty things to [him], and [he] said mean, nasty things to her."
B. Procedural History
On November 9, 2018, the Monterey County District Attorney filed an information charging Segovia with one felony count of inflicting corporal injury on a person he was dating (§ 273.5, subd. (a)) and one misdemeanor count of disobeying a temporary restraining order (§ 273.6, subd. (a)). Following a trial, the jury found Segovia guilty of both charges.
The trial court suspended imposition of sentence for three years of formal probation, conditions of which included service of 180 days in county jail. The trial court ordered Segovia to pay various fines, fees, and assessments, including a criminal justice administration fee (former Gov. Code, §§ 29550, 29550.1, 29550.2), a presentence report fee of $864 (former § 1203.1b), and a monthly probation supervision fee of $81 (former § 1203.1b).
As of July 1, 2021, the statutory provisions pursuant to which the court ordered Segovia to pay a criminal justice administration fee, a presentence investigation fee, and probation supervision fee were repealed, and newly-enacted section 1465.9 and Government Code section 6111 became effective. (Assem. Bill. No. 1869 (2019-2020 Reg. Sess.) §§ 62 & 11.) Accordingly, "[o]n and after July 1, 2021, the balance of any court-imposed costs pursuant to Section . . . 1203.1b . . . shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (§ 1465.9, subd. (a).) Likewise, "[o]n and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, . . . is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Govt. Code, § 6111, subd. (a).) The criminal justice administration fee was imposed subject to Segovia's ability to pay, but there is no indication in the record that an inquiry into Segovia's ability to pay this fee was ever conducted or that any such fee was actually levied. In supplemental briefing, the parties agree that Segovia is entitled to relief from these fees to the extent of any balance unpaid as of July 1, 2021.
Segovia timely appealed.
II. DISCUSSION
A. Admission of Evidence
Segovia argues that the trial court erred in admitting irrelevant and prejudicial evidence at trial, specifically: (1) text messages exchanged between Segovia and Doe in which she expressed concern that Segovia might have a gun and might harm her with it, and Doe's subsequent testimony regarding her fear that he had a gun; and (2) Doe's testimony that her mother was due to have open-heart surgery the day after the altercation at the medical center. We conclude that the trial court acted within its discretion in admitting the evidence.
1. Applicable Legal Principles
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) But "[a] trial court has 'considerable discretion' in determining the relevance of evidence. [Citation.]" (People v. Merriman (2014) 60 Cal.4th 1, 74.)
Relevant evidence may nonetheless be excluded "if it' "uniquely tends to evoke an emotional bias against a party as an individual"' [citation] or if it would cause the jury to '" 'prejudg[e]' a person or cause on the basis of extraneous factors."' [Citation.]" (People v. Cowan (2010) 50 Cal.4th 401, 475; Evid. Code, § 352.)" 'In applying section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 320.) "[T]he trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (Id. at pp. 1124-1125.)
2. Evidence of Segovia's Gun Possession
a. Background
Segovia moved in limine to "exclude evidence that [he] once owned a gun." The evidence of Segovia's possible gun possession was included in a January 12, 2018 text message exchange and related testimony by Doe.
The text messages from January 12, 2018, among others, were admitted as a documentary exhibit and were read into the record by Doe:
Segovia had also moved to exclude as propensity evidence not admissible under Evidence Code section 1101 or 1109 all text messages exchanged before March 29, 2018, between Segovia and Doe. The trial court denied this motion as well, reasoning that the text messages were "relevant and probative as to the relationship and the alleged abuse and controlling behavior of the defendant." On appeal, Segovia does not challenge the admission of other text messages (or the adequacy of related jury instructions), only the January 12, 2018 exchange referencing gun possession.
Segovia: "You still out?"
Doe: "Yes. I'm on your side of town. I can come by real quick when I leave Debra Anne's."
Segovia: "Don't worry. Stay there."
Doe: "Why you always got to say stuff like that? I don't do that when you go to Daniel's."
Segovia: "Stay there with whomever you're with. You don't want me."
Doe: "So you saying I'm lying about being with Debra Anne?"
Segovia: "Only you know."
Doe: "This is the first and last time you'll ever get a picture to prove I'm not lying. You either trust me or you don't. And I already know you don't, even though I've never cheated or anything. Attached is a picture of me and Debra Anne."
Segovia: "I'm turning off your phone. I'm waiting for you at your place. Call Jesse. Hopefully he can help you."
Doe: "Help me with what? Should I be worried? Should I be afraid since you're stalking me by sitting in my parking stall and waiting for me?"
Segovia: "He's your man. I'm waiting for you. I'll wait all night."
Doe: "If he's my man, why are you waiting at my house for me?"
Segovia: "You know."
Doe: "No, I don't know."
Segovia: "I know you're with someone right now."
Doe: "For all I know, you might still have your gun."
Segovia: "I'm going to be in your space all night."
Doe: "You might want to shoot me."
Segovia: "So you're with someone? Wow."
Doe: "Geez, dude. I sent you a pic of who I'm with. It's Debra Anne. Why you got to be so psycho?"
Segovia: "I'm waiting. I'll be right here waiting all night. Why are you still there?"
Doe: "You are psychotic. And I'm in fear of my life and my kids' lives. You might still have that gun."
Segovia: "What a mom. You forgot to tell [the child] you're a slut."
Doe: "I hate you."
Segovia: "Me too, slut."
Doe: "I wish I never met you. You're the worst thing that ever happened to anybody."
Segovia: "You're a whore, like your mother. I'm turning off your phone in the morning."
Doe: "Yep."
Asked about her references to a gun, Doe testified that Segovia had "told [her] in the past that he'd got rid of the gun." Doe testified that she was frightened that Segovia might still have one, "[b]ecause he's a very angry person who is vindictive." The prosecutor asked if Doe was concerned "about what might happen if [she] did end the relationship[, ]" and Doe responded she was "worried about him being vindictive and doing something to . . . hurt me."
On cross-examination, however, Doe testified that she did not in fact see Segovia that night, she had never seen any gun in Segovia's possession, and he had never threatened her with a gun.
In admitting the evidence, the trial court deemed it "highly relevant to explain Jane Doe's conduct, behavior, as well as the defendant's actions and the relationship between the parties in this type of case." It also concluded that the risk of undue prejudice did not outweigh the probative value of the evidence.
b. Analysis
Segovia claims that Doe's testimony and text messages regarding a gun were irrelevant to her claim of fear or any propensity for abuse, absent evidence that Segovia had ever threatened her with a gun. We find no abuse of discretion.
Although the trial court did not specifically reference Evidence Code section 1109 or Segovia's claim of self-defense in ruling on the admissibility of the evidence, we review the result, not the rationale, of the trial court's decision. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Segovia concedes in his opening brief that the evidence would be relevant "if the evidence actually tended to prove Segovia was abusive toward Doe in their relationship." And the evidence does tend to prove that he was abusive. It is immaterial that Segovia himself never said he had a gun, given his insistence that he would wait all night in her parking space for her return, that she had been unfaithful to him, and that she should call "her man" for help. His silence in response to Doe's speculation that he might have a gun demonstrates he was content to allow Doe to fear that he might have a weapon. And when he answered Doe's accusation that he might want to shoot her by saying, "So you're with someone?" he effectively suggested that his response to disloyalty would be violent. That he followed this with "Why are you still there?" conveyed his expectation that she accede to his coercion. His behavior was, at a minimum, harassing and disturbing of Doe's peace, within the meaning of Family Code section 6211 and 6203, and the evidence was therefore admissible under Evidence Code section 1109.
Moreover, given Segovia's reliance on his own injury and his claim of self-defense, evidence of Segovia's readiness to instill fear of physical harm was relevant to the jury's determination of the reasonableness of Doe's biting Segovia. His early announcement that he was "turning off [Doe's] phone" was likewise relevant evidence of a common plan or scheme under Evidence Code section 1101, subdivision (b).
Nor was the evidence of Doe's statements about Segovia's gun possession unduly prejudicial. It was clear from the very evidence in dispute that Segovia may never have had a gun, and nothing in the record suggested that possession of a gun would have been unlawful. Rather, any prejudice to Segovia lay solely in the probative value of his deliberate efforts at coercion; that Segovia might have at one point possessed a weapon did not make the text exchange inadmissible under Evidence Code section 352.
The trial court did not abuse its discretion in finding that this evidence was relevant and that its probative value outweighed any prejudice that would result from its admission. Because the evidence was relevant and admissible, Segovia's claim that "admission of [the] evidence violated [a defendant's] constitutional right to a fair trial . . . also is without merit. [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 670.)
3. Evidence of Doe's Mother's Surgery
The trial court likewise denied Segovia's motion to exclude Doe's testimony that she gave up waiting for police to respond on March 29 because her "mother was scheduled to have open[-]heart surgery the following morning. And . . . not knowing what's going to happen[, ] . . . this was like our last opportunity to see her . . . before, you know, she gets on the operating table in the morning." We reject Segovia's contention that the admission of this testimony was erroneous.
As the trial court reasoned, there are many kinds of surgery a family member might undergo, and without knowing the nonelective and urgent nature of the surgery Doe's mother was imminently to undergo, mere conjecture about the relative gravity of the medical event might have distorted the jury's assessment of Doe's credibility. Given the factual dispute as to the severity of the altercation and Doe's role in it, we do not consider the trial court's determination of relevance to be arbitrary or capricious. Without understanding Doe's reason for leaving the scene, the jury might have doubted Doe's claim that she was fearful of Segovia, speculated that Segovia's actions had therefore been more trivial that Doe had described, or surmised that Doe was evading the police out of concern that she would be deemed the aggressor.
In his reply papers, Segovia notes that, even without this testimony, the jury still heard that Doe sought help from a security guard at Natividad, that 911 was called, that she waited for an hour for police to arrive, and that she went to the police station a few days later to complete her report. But the evidence of measures Doe undertook despite her decision to leave the scene does not render cumulative or immaterial Doe's explanation of that decision.
Although the testimony had some potential to elicit sympathy for Doe, the risk of prejudice was limited by at least two factors. First, Doe testified that the surgery was successful and her mother was still alive. Second, the testimony was brief and factual in nature without dwelling on the details of mother's health history or symptoms. Accordingly, we conclude the trial court did not abuse its discretion in finding the probative nature of the testimony as it related to Doe's credibility outweighed any possible prejudice to Segovia.
B. Prosecutorial Misconduct
Segovia next argues that the prosecutor committed misconduct during closing and rebuttal argument by inviting the jury to consider Doe's concerns about her mother's imminent surgery and by misrepresenting what Segovia had said to Doe right before reaching into her car. In his view, the prosecution argument rendered his trial fundamentally unfair and thus violated his due process rights under the federal and state constitutions. Segovia's failure to object or request an admonition in the trial court forfeited the claim. (People v. Seumanu (2015) 61 Cal.4th 1293, 1339; People v. Valdez (2004) 32 Cal.4th 73, 122.) Even without forfeiture, we nonetheless conclude the prosecutor's remarks were within the wide latitude permitted in summation.
1. Applicable Legal Principles
"Improper comments violate the federal Constitution when they constitute a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.]" (People v. Bell (2019) 7 Cal.5th 70, 111.) A prosecutor engages in prosecutorial misconduct under state law if he or she uses deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
" 'It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]'" (People v. Wharton (1991) 53 Cal.3d 522, 567 (Wharton).) When evaluating the propriety of a prosecutor's remarks or comments made before the jury, "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) To find prosecutorial error, we must view the challenged statements in the context of the entire argument and the jury instructions to determine whether there was a reasonable likelihood the jury understood or applied the comments in an improper or erroneous manner. (People v. Cortez (2016) 63 Cal.4th 101, 130-131 (Cortez).) "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.'" (Id. at p. 130)" 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno (2014) 60 Cal.4th 659, 667.)" '[W]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.'" (People v. Osband (1996) 13 Cal.4th 622, 717.)
A prosecutor may not appeal" 'to the sympathy or passions of the jury'" and" 'urg[e] them to imagine the suffering of the victim.'" (People v. Vance (2010) 188 Cal.App.4th 1182, 1192.) "[A]n appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt." (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, revd. on another ground in Stansbury v. California (1996) 511 U.S. 318.) But "a few [such] remarks in a much longer closing argument" generally will not prejudice the defendant. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1344.)
2. Analysis
a. Doe's Mother
At the outset of closing argument, the prosecutor referred to Doe's mother as "ailing" while recounting Doe's reason for going to Natividad to pick up flowers: "On March 29th of this year Jane Doe went to pick up flowers from her office. She said because she was going to take them to her ailing mother." There can be no serious contention that the passing adjective was improper or a coded entreaty to decide the disputed facts based on sympathy, rather than brief and accurate setting of the scene.
It was not until rebuttal that the prosecutor referred again to Doe's mother: "Defense counsel says, Well, Jane Doe's strong. Something as small happening like the defendant not telling her that he loves her made her end it. Well, what was going on for her that day? Why would she have been so touchy? Maybe it's the fact that her mom was having open heart surgery later that day. And she said on the stand that she's worried it could have been her mom's last day." This reference to Doe's subjective concerns responded directly to argument by defense counsel as to Doe's credibility. Specifically, defense counsel had maintained that Doe's readiness to end the relationship over a trifle on March 29 disproved Doe's testimony about the relationship generally that (1) Segovia was controlling, (2) she was fearful of him, and (3) she, unlike Segovia, was slow to anger. The prosecutor's remarks about Doe's state of mind were an effort to persuade the jury not to construe Doe's reaction to the phone call with Segovia as typical of their interactions. Whether taken individually or in combination, the prosecution references to Doe's mother were not improper. There was no effort to suggest to the jury that Doe's worries for her mother justified either her biting Segovia or her resistance to surrendering the phone. Nor did the prosecutor suggest that her mother's surgery in any way made Segovia's insistence on recovering the phone at that moment more blameworthy. Accordingly, the prosecutor's limited references to Doe's mother were, in context, a" 'fair comment on the evidence'" that did not constitute misconduct. (Wharton, supra, 53 Cal.3d at p. 567.)
Nor may we infer that the prosecution arguments led the jury to apply the comments in an improper manner. The jury had twice been instructed not to be swayed by passion or prejudice, and "[w]e presume jurors understand and follow the instructions they are given." (People v. Buenrostro (2018) 6 Cal.5th 367, 431.)
b. Segovia's Statements at the Car
In his initial closing argument, the prosecutor said, "Seconds after [Doe] gets [to the hospital] [Segovia] gets out of his truck, and he walks over to her window, and he pulls the same lever that he's pulled every time before when he's angry. 'Who are you cheating with? Give me the phone. Who are you cheating with? Give me the phone.' " Neither Segovia nor Doe testified that he had, in that moment, explicitly accused Doe of cheating on him.
"Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A prosecutor's 'vigorous' presentation of facts favorable to his or her side 'does not excuse either deliberate or mistaken misstatements of fact.' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 823.) But the prosecutor's prefatory words-"the same lever that he's pulled every time before" when he's angry-indicated that the statements the prosecutor next attributed to Segovia were intended not as a verbatim quote of what Segovia said in the specific moment, but as a generalization about Segovia's reflexive response to Doe's intransigence. This was the overarching theme of the prosecution's argument, which was reiterated throughout the prosecutor's initial closing argument. Nor was the application of that generalization here unwarranted, supported as it was by Segovia's text to Doe just before their encounter, replying to her break-up text by accusing her of "hav[ing] someone already." The trial court also properly instructed the jury that the arguments of counsel are not evidence.
Viewing the prosecutor's comments"' "[i]n the context of the [entire] argument and the jury instructions," '" as we must (Cortez, supra, 63 Cal.4th at p. 130), we discern no error.
C. Instructional Error
Segovia contends that the trial court erred by failing to reinstruct the jury on self-defense and accident when answering the jury's second question regarding the meaning of "willful" in the infliction of corporal injury under section 273.5. But the trial court correctly defined "willful" for the jury in responding to the question. And because the jury expressed no confusion as to the properly administered original instructions on self- defense or accident, the trial court had no obligation to reinstruct on these defense theories.
1. Relevant Background
The jury began deliberating on Friday, August 23. Early that afternoon, the jury submitted the following question: "Clarify what the legal meaning of 'willfully' is in this case." With the agreement of both parties, the trial court responded to the jury's question as follows:" 'Willfully' is defined in Instruction Numbers 840 [§ 273.5], 841 [§ 243(e)(1)], 915 [§ 240] and 2701 [§ 273.6].' "
The following Monday morning, the prosecutor requested that the court reconsider its original response and give the jury the definition of "willfully" from section 7. The prosecutor was concerned that the jury would be confused by how the pattern instruction on section 273.5 (inflicting corporal injury) differed from the instructions on the lesser offenses and count 2 in the definition of "willfully." Defense counsel objected on the ground that further instruction was unnecessary and would confuse the jury. The court anticipated that the jury might "have a follow-up question noting the difference in definitions," but declined to interrupt "the ongoing deliberative process," both uninvited and long after its initial response the Friday before.
Section 7, subdivision (1), provides: "The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage."
Later that morning, the jury submitted the following question: "If someone applies sufficient force to cause bruising, does it meet the standard for willful cause of corporal injury?" The prosecutor again requested that the court "instruct the jury pursuant to . . . [s]ection 7, subdivision (1), on the full definition of the word 'willfully,' given there's a truncated definition in . . . CALCRIM [840] for . . . [s]ection 273.5." Defense counsel agreed, but also asked that the "Court instruct with regard to self- defense and accident" because "their question seems to be hinting at-or appears to perhaps not be able to distinguish those factors as well."
The court agreed to provide stipulated further instruction defining "willfully" but declined to instruct further on self-defense or accident, because "the jury has not asked about defenses." The trial court provided the following response to the jury: "Willfully as it applies in this case, implies a purpose or willingness to commit the act. It does not require any intent to violate law, or to injure another, or to acquire any advantage. [¶] I also request that you review [CALCRIM] 840 in its entirety. [¶] In addition, please pay careful attention to all of the instructions that I have given you and consider them together."
The trial court agreed with defense counsel and omitted the word "simply" from section 7, subdivision (1)'s definition of "willfully" in section 7. (See fn. 6, ante.)
2. Applicable Legal Principles
"Where the original instructions [to the jury] are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).) In responding to a request for further instruction, the court "must at least consider how it can best aid the jury . . . [and] should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (Ibid.)
On appeal, the court "review[s] de novo the legal accuracy of any supplemental instructions provided" by the trial court. (People v. Franklin (2018) 21 Cal.App.5th 881, 887, fn. omitted.) "When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner." (People v. Wilson (2008) 44 Cal.4th 758, 803).) "We of course presume 'that jurors understand and follow the court's instructions.'" (Ibid.)
3. Analysis
In this case, the jury's second question sought further instruction on whether the application of force sufficient to cause bruising met "the standard for willful cause of corporal injury." As the prosecutor had foreseen, the trial court's response to the jury's previous question (i.e., requesting clarification on the legal meaning of "willfully") apparently created some confusion given that the instructions on inflicting corporal injury (CALCRIM No. 840) and violation of a court order (CALCRIM No. 2701)-unlike the instructions on simple battery and simple assault-did not include additional language explaining the meaning of "willfully." Specifically, CALCRIM Nos. 840 and 2701 provide in pertinent part: "Someone commits an act willfully when he or she does it willingly or on purpose." (Italics in original.) The other instructions (CALCRIM Nos. 841 and 915) further explain: "It is not required that he or she intend to break the law, hurt someone else, or gain any advantage."
Viewing the instructions as a whole, there is no reasonable likelihood the jury misapplied the court's response to its second question. Though Segovia contends the jury's question necessarily implicated the concepts of self-defense and accident, the jury in its notes mentioned neither of those concepts, which the trial court had separately and correctly defined by the administration of CALCRIM Nos. 3470 (Self-Defense) and 3404 (Accident). The trial court properly inferred that the jury confusion was as to whether the element of willfulness under section 273.5 required that bruising have been intended, as opposed to the application of force. It was not unreasonable to fear that reinstructing on specific defense theories-unsolicited by the jury-might be unduly suggestive. Courts have long been reluctant to countenance potentially coercive invasion of the jury's province. (See, e.g., Cook v. Los Angeles Ry. Corp. (1939) 13 Cal.2d 591, 595 [even where plain language of instruction discloses no bias, other factors "may well have imparted such an impression"].)
Self-defense does not implicate section 273.5's element of willfulness, but rather the prosecution's burden to prove the infliction of injury, if willful, was also unlawful. "One who believes his or her conduct is necessary for self-defense . . . may very well manifest a desire to injure." (People v. Hayes (2004) 120 Cal.App.4th 796, 804.)
To the extent that Segovia seeks to impose an obligation to go beyond the four corners of the note and speculate about some unspecified alternative focus of confusion before giving its response, his reliance on Beardslee, supra, 53 Cal.3d 68 for this proposition is misplaced: unlike in Beardslee, the trial court did not "figuratively throw up its hands" (id. at p. 97) but in fact responded to the jury's question with a complete, accurate, and stipulated definition of the sole term the jury had twice asked to have explained.
If the jury was in fact confused about applying self-defense and accident in this case, it could have made its confusion about those concepts clear in its second note or, having received the court's response, sent another note asking the court to specifically address those defenses. This note was clear on its face and the trial court responded squarely and accurately to the question raised. We conclude there was no error.
D. Cumulative Error
Segovia argues that the cumulative prejudice from the errors he asserts warrant reversal. There being no errors to cumulate, this challenge to the verdict is likewise unavailing. (In re Reno (2012) 55 Cal.4th 428, 483; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
E. Sentencing Error
Finally, we find no abuse of discretion in the trial court's refusal to reduce Segovia's felony conviction under section 273.5, subdivision (a) to a misdemeanor.
1. Applicable Legal Principles
Section 273.5, subdivision (a), is a "wobbler" offense punishable either as a felony or as a misdemeanor. (§ 273.5, subd. (a).) Trial courts possess broad discretion in determining whether to reduce such a felony to a misdemeanor pursuant to section 17, subdivision (b). (People v. Bonilla (2018) 29 Cal.App.5th 649, 660-661.) The relevant factors to be considered include" 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.'" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).) There is no single factor which controls the court's exercise of discretion under section 17, subdivision (b). (Id. at p. 979.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847).)
" 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
2. Analysis
Segovia contends the trial court erred by focusing exclusively on his "appreciation of and attitude toward the offense" while ignoring the "other relevant factors-the nature and circumstances of the offense, Segovia's proven character, and his limited criminal record." The record plainly belies his claim.
The trial court did comment at length on Segovia's "lack of remorse, lack of responsibility, and, frankly, lack of credibility here in court today as he had lack of credibility while testifying." The court noted the conflict between the surveillance video and Segovia's testimony about his conduct: "You look at a video, you watch your own conduct on a video, and you pretend it didn't happen." The trial court's emphasis of lack of remorse does not, however, reflect a refusal to consider other factors. The "nature and circumstances of the offense" as reflected in the surveillance video were in fact the focus of an extended discussion between the trial court and Segovia. The trial court also noted that it had reviewed the letters and sentencing brief submitted on Segovia's behalf, and expressly acknowledged Segovia's "minimal criminal record" and "substantial support from [his] family and some community."
Against this record, Segovia's argument appears to reflect a belief that the trial court must expressly enumerate and weigh all the factors that it considers. We find no authority for this construction of section 17, nor does Segovia supply any. Accordingly, we have no basis to conclude that the trial court failed to consider the factors Segovia contends favor reducing his conviction to a misdemeanor. Rather, the trial court implicitly determined they were of insufficient weight relative to Segovia's continuing lack of remorse and denial of responsibility. Segovia accordingly has not met his burden of showing the trial court's decision to be irrational or arbitrary. (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
III. DISPOSITION
Under section 1465.9 and Government Code section 6111, we vacate those portions of the order of probation imposing a criminal justice administration fee, presentence report fee, and probation supervision fee, to the extent of any such fees remaining unpaid as of July 1, 2021. As modified, the order of probation is affirmed.
WE CONCUR: GREENWOOD, P.J., DANNER, J.