Opinion
D058388 D058389
11-17-2011
THE PEOPLE, Plaintiff and Respondent, v. NATHAN SEMAJE SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. RIF135771, RIF148690)
APPEALS from a judgment of the Superior Court of Riverside County, Sherrill A. Ellsworth, Judge. Affirmed as modified and remanded with instructions.
These consolidated appeals arise out of Nathan Semaje Smith's acts of domestic violence against two different women on separate occasions. By committing the offenses against the second woman, Smith violated the probation he had been granted when he pled guilty to offenses against the first. After a jury found Smith guilty of offenses against the second woman, the trial court sentenced him to 12 years in prison for the offenses against both. Smith appeals, contending the trial court prejudicially failed to instruct the jury on a lesser included offense, erroneously excluded certain evidence and incorrectly calculated his sentence. We affirm the convictions, modify the sentence, and remand for award of credit for time Smith spent in jail as a condition of probation.
I
FACTUAL BACKGROUND
A. Smith's Assault on His Wife
After spending the night out with friends, Smith's wife (hereafter, Wife) returned home at approximately 2:30 a.m. and received a telephone call from Smith, who was "cursing [her] out, asking where [she] was." Soon thereafter, Smith arrived home and walked into the bedroom, where Wife was sitting on the bed. Smith was "very angry," shouted insults at Wife and aggressively walked toward her. He shoved Wife around the room, forced her onto the bed and tore her clothes off. Smith also removed his own clothes and attempted to engage in sexual intercourse with Wife but was unable to achieve an erection. Wife asked Smith to stop, but he told her, "Shut up, bitch," and choked and punched her. Smith also threatened to kill her. By the time Smith calmed down, Wife sustained bruises on her neck, scratches on her chest and thighs, "a busted lip and a black eye." B. Smith's Assault on L.M.
Approximately two years after his assault on Wife, Smith was living with L.M. when he got into an argument with her. Smith shouted at L.M. and accused her of infidelity. Smith went into the kitchen and threw a pot towards L.M., and she smashed some glasses on the floor. Smith then hit L.M. in the face and called her a bitch and a whore. As the two continued to scuffle, L.M. fell on the broken glass on the floor.
Eventually, Smith pulled L.M. by her hair into the bedroom. L.M. freed her hair from Smith's grasp and prepared to leave by gathering some clothes. Smith told her she "wasn't going anywhere," grabbed her by the hair again, and slammed her head into a wall. Smith then started slapping L.M. across the face and threw a lamp at her. When L.M. tried to call 911 on her mobile telephone, Smith snatched the telephone and snapped it in half. Smith hit L.M. in the face, sat on top of her and tore off her clothing. He then inserted his fingers and a plastic clothes hanger into L.M.'s vagina.
The assault of L.M. was interrupted when Smith's friend entered the house and asked whether everything was okay. Smith ran to shut the bedroom door and told the friend everything was fine. Smith laughed as L.M. lay on the floor crying and bleeding. He told L.M. that if she called the police or told anyone, "he knew where [her mother] lives and he kn[ew] where [her] family lives." Smith eventually left the bedroom and went outside.
While Smith was outside, L.M. ran out the back door to her car, drove off and called 911. An ambulance took L.M. to a hospital, where a nurse recorded L.M.'s account of the assault; found abrasions, contusions and lacerations on her face, neck and other parts of her body; and photographed the injuries. L.M. also underwent a pelvic examination, which revealed redness of the cervix and injuries to her external genitalia that were consistent with the assault described by L.M.
In response to the 911 call, a detective went to Smith's house and found in his bedroom a portion of a broken mobile telephone, a portion of a brassiere, a pair of pants, and plastic clothes hangers. These articles matched those described by L.M. in her report of the assault.
II
PROCEDURAL BACKGROUND
In the case arising out of the assault on Wife (D058389/RIF135771), Smith pleaded guilty to charges of assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and inflicting corporal injury on a spouse (§ 273.5, subd. (a)). The trial court granted Smith formal probation.
Subsequent undesignated statutory references are to the Penal Code.
In the case arising out of the assault on L.M. (D058388/RIF148690), there were two jury trials. A first jury found Smith guilty of inflicting corporal injury on a cohabitant (count 1; § 273.5, subd. (a)), but was unable to reach verdicts on the charges of dissuading a witness (count 2; § 136.1, subd. (c)(1)) and sexual penetration by a foreign object (count 3; § 289). After the jury returned its verdict, the trial court declared a mistrial on counts 2 and 3 and found Smith violated the terms of his probation. On retrial, a second jury found Smith guilty of the two counts on which the first jury was unable to reach verdicts.
At a combined sentencing hearing, the trial court sentenced Smith to an aggregate term of 12 years in prison. For the convictions arising out of the assault on Wife, the court revoked Smith's probation, imposed the low term of two years in prison for assault likely to produce great bodily injury (§ 245, subd. (a)(1)) and imposed a concurrent term of 180 days in county jail for inflicting corporal injury on a spouse (§ 273.5, subd. (a)). For the convictions arising out of the assault on L.M., the court sentenced Smith to six years in prison (the middle term) for sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)), and selected this as the principal term (§ 1170.1, subd. (a)). The trial court imposed consecutive prison terms of three years (the middle term) for dissuading a witness (§§ 136.1, subd. (c)(1), 1170.15) and one year (one-third of the middle term) for inflicting corporal injury on a cohabitant (§§ 273.5, subd. (a), 1170.1, subd. (a)). The court also awarded Smith postprobation revocation custody and work credits.
III
DISCUSSION
A. The Trial Court's Failure to Instruct on Battery as a Lesser Included Offense of Sexual Penetration by a Foreign Object at the First Trial Does Not Require Reversal of Smith's Conviction of the Greater Offense at the Second Trial
Smith contends the trial court erred when, during the first trial, it failed fully to instruct the jury on battery (§ 242) as a lesser included offense of sexual penetration by a foreign object (§ 289). According to Smith, we must reverse his conviction of sexual penetration by a foreign object at the second trial because it is reasonably likely the first jury would have found him guilty of battery had it been properly instructed on the elements of that offense. Smith also contends the second trial on the charge of sexual penetration by a foreign object violated the double jeopardy clause. We shall set forth additional pertinent facts and then explain why these contentions lack merit.
"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ." (U.S. Const., 5th Amend.; see Benton v. Maryland (1969) 395 U.S. 784, 794 [double jeopardy clause applies to states through 14th Amend.]; Cal. Const., art. I, § 15 ["Persons may not twice be put in jeopardy for the same offense . . . ."].)
1. Additional Facts
During the first trial, Smith's counsel requested that the court instruct the jury on battery as a lesser included offense of sexual penetration by a foreign object. Although the record is not entirely clear, it appears the prosecutor and the trial court agreed such instruction should be given. The court did instruct the jury that battery is a lesser included offense of sexual penetration by a foreign object, but it did not instruct the jury on the elements of battery.
During deliberations, the jury sent the following note to the court: "If we cannot arrive at a unanimous decision on greater charge on count 3, do we go to discussing the lesser charge or not? Jury instructions not clear to all of us regarding this point." The court responded, "The jury is referred to [CALCRIM No.] 3517, paragraph number 2." That paragraph stated, "If all of you cannot agree whether the People have proved beyond a reasonable doubt that the defendant is guilty of the greater crime, inform me only that you cannot reach an agreement and do not complete or sign any verdict form for that count."
The jury subsequently informed the trial court it was unable to reach agreement on counts 2 and 3 and returned all verdict forms on those counts unsigned. The court asked counsel if they wanted to inquire further or to poll the jury, and both counsel responded in the negative.
At the second trial, the court instructed the jury that battery is a lesser included offense of sexual penetration by a foreign object and also instructed on the elements of battery. The jury found Smith guilty of the greater offense.
2. Legal Analysis
We first address Smith's contention that the trial court's failure to instruct the jury
at the first trial on the elements of battery as a lesser included offense requires reversal of Smith's conviction of sexual penetration by a foreign object at the second trial. "Anyone who seeks on appeal to predicate a reversal of conviction on error must show that it was prejudicial. (Cal. Const., art. VI, § 13.)" (People v. Archerd(1970) 3 Cal.3d 615, 643, abrogated on other grounds by People v. Nelson (2008) 43 Cal.4th 1242.) Thus, we may reverse a conviction of a charged offense for failure to instruct on a lesser included offense "only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 178 (Breverman).) Smith has not demonstrated such a reasonable probability here.
Since the People do not argue otherwise, for purposes of our analysis we shall assume without deciding that battery is a lesser included offense of sexual penetration by a foreign object. (But see People v. Santos (1990) 222 Cal.App.3d 723, 739 [stating without analysis that battery is not a lesser included offense of sexual penetration by a foreign object].)
As noted earlier, Smith argues it is reasonably probable he would have been acquitted of sexual penetration by a foreign object and convicted of battery at the first trial if the jury had been properly instructed on battery as a lesser included offense. Our Supreme Court has held, however, that "the jury may not return a verdict on the lesser offense unless it has agreed beyond a reasonable doubt that defendant is not guilty of the greater crime charged . . . ." (People v. Kurtzman (1988) 46 Cal.3d 322, 329, italics omitted; see also People v. Fields (1996) 13 Cal.4th 289, 304 [Kurtzman "was meant to establish the 'acquittal-first' rule as a mandatory rule of procedure"].) Here, the first jury could not agree on a verdict on the greater charge of sexual penetration by a foreign object. Under Kurtzman, this deadlock removed the option of the jury finding Smith guilty of the lesser included offense of battery. Hence, reversal of the conviction of sexual penetration by a foreign object is not warranted because it is not reasonably probable that, absent the instructional error of which Smith complains, the first jury would have convicted him of battery. (Breverman, supra, 19 Cal.4th at p. 178.)
We next consider Smith's related contention, asserted for the first time in his reply brief, that the second trial on the charge of sexual penetration by a foreign object was barred by the double jeopardy clause. (See fn. 2, ante.) According to Smith, if the trial court had properly instructed the first jury on the elements of battery, the mistrial would not have been "a legal necessity and therefore double jeopardy precluded retrial on the greater offense in the second trial." We ordinarily do not consider arguments raised for the first time in an appellant's reply brief because to do so would unfairly deprive the respondent of an opportunity to respond. (E.g., American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Nevertheless, because the failure to assert a plea of former jeopardy at trial might have deprived Smith of the effective assistance of counsel, we shall address the argument on the merits. (See, e.g., People v. Holloway (2004) 33 Cal.4th 96, 155, fn. 18.)
The general rule is that there is no double jeopardy violation where, as here, a defendant is retried on a charge after a jury is unable to reach a verdict on the charge because in such a situation a mistrial is a legal necessity. (E.g., Richardson v. United States (1984) 468 U.S. 317, 325; People v. Marshall (1996) 13 Cal.4th 799, 825.) To escape application of this general rule, Smith relies exclusively on the narrow exception created in Stone v. Superior Court (1982) 31 Cal.3d 503. In Stone, our Supreme Court held "the trial court is constitutionally obligated to afford the jury an opportunity to render a partial verdict of acquittal on a greater offense when the jury is deadlocked only on an uncharged lesser included offense. Failure to do so will cause a subsequently declared mistrial to be without legal necessity." (Id. at p. 519, italics added.) Unlike Stone, where the jury foreman reported in open court that the jurors unanimously agreed to acquit on greater offenses but were deadlocked on lesser included offenses (id. at p. 507), here nothing in the record suggests the first jury agreed to acquit Smith of the greater offense (sexual penetration by a foreign object) and disagreed only on the lesser included offense (battery) — to the contrary, the first jury informed the court it was deadlocked on the greater offense. Accordingly, "[w]e conclude the mistrial was a matter of legal necessity, and therefore reject [Smith's] claim of double jeopardy." (Marshall, at p. 827.) B. The Trial Court's Exclusion of Evidence Does Not Require Reversal
Smith argues the trial court violated his constitutional right to present a defense when it refused to allow him to present crucial evidence. Specifically, Smith complains the trial court would not allow him (1) to elicit from the nurse who completed the suspect evidentiary kit testimony that fingernail scrapings were taken but never tested or (2) to testify that he had conversations with L.M. about the convictions arising out of his assault on Wife. According to Smith, the trial court's "preclusion of [this] proffered evidence prejudicially impacted his defense[,] compelling reversal." After setting forth additional pertinent facts, we shall explain why we reject Smith's arguments.
1. Additional Facts
As part of the defense case, Smith planned to call the nurse who performed the suspect evidentiary kit after L.M. reported the assault. Smith's trial counsel represented that during the nurse's examination "samples were obtained from under Mr. Smith's fingernails of the hand that was allegedly used in this incident." The prosecutor objected on relevance grounds and represented that these samples "weren't tested. Nothing was done with the scrapings." Smith's counsel nevertheless contended the fact that scrapings were taken but not tested was "exculpatory" because the scrapings were "available for use." The trial court ruled the fact that fingernail scrapings were taken was irrelevant and excluded the testimony Smith sought to introduce.
Later in the presentation of the defense case, Smith's counsel asked Smith whether L.M. was aware of his convictions in the case arising out of the assault on Wife. The prosecutor objected on relevance and hearsay grounds. At a conference outside the presence of the jury, Smith's trial counsel stated: "I believe it is a relevant line of testimony in that [L.M.] had information in regards to the charges against Mr. Smith. And I believe it is relevant because [of] the similarity between the acts . . . ." The trial court sustained the prosecutor's relevance objection.
2. Legal Analysis
The trial court properly excluded the evidence concerning Smith's fingernail scrapings. Only relevant evidence is admissible. (Evid. Code, §§ 350, 351.) "Relevant evidence" is evidence having a tendency in reason to prove or disprove a disputed fact consequential to the determination of an action. (Id., § 210.) Evidence is relevant if it tends logically, naturally or by reasonable inference to establish or negate a material fact. (People v. Cowan (2010) 50 Cal.4th 401, 482; People v. Kronemyer (1987) 189 Cal.App.3d 314, 347.) "Evidence is irrelevant, however, if it leads only to speculative inferences." (People v. Morrison (2004) 34 Cal.4th 698, 711.) Here, the mere fact that fingernail scrapings were collected from Smith after the assault on L.M. does not have any tendency to prove or disprove his guilt. Since no testing was ever done on the scrapings, it is unknown whether they contained cells or body fluids from L.M. The jury could only speculate as to those matters. The trial court therefore did not err in sustaining the prosecutor's relevance objection.
The exclusion of testimony concerning L.M.'s knowledge of Smith's prior convictions also does not warrant reversal. Smith contends the excluded testimony would have supported his trial theory that L.M. fabricated the assault based on her knowledge of Smith's earlier assault on Wife. Even if we assume the trial court erred in excluding this evidence, any such error was harmless because it is not "reasonably probable" Smith would have obtained a more favorable verdict in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Cudjo (1993) 6 Cal.4th 585, 610-611 [applying Watson standard of harmless error to claim of erroneous exclusion of defense evidence].) The jurors, who observed L.M. testify about the assault on both direct and cross-examination, could judge her credibility for themselves. Further, the testimony of the nurse who examined L.M. after the assault and photographed her injuries, as well as the physical evidence the detective found in Smith's bedroom after the assault (e.g., the torn brassiere and broken mobile telephone), substantially corroborated L.M.'s testimony. On this record, we conclude there was no reasonable probability the jury would have determined L.M. fabricated the assault if Smith had been permitted to testify he had conversations with L.M. about his prior convictions for the assault on Wife. (See Watson, at p. 836; see also People v. Gutierrez (2009) 45 Cal.4th 789, 828 [any error in excluding evidence was "harmless because it would not have resulted in a more favorable verdict"]; People v. Mickle (1991) 54 Cal.3d 140, 169 [exclusion of impeachment evidence was harmless when evidence "would not have painted a materially different picture of [witness's] credibility"].) C. The Trial Court Imposed an Unauthorized Sentence for the Conviction of Assault Likely to Produce Great Bodily Injury and Did Not Credit Smith for Time Spent in Jail as a Condition of Probation
Although Smith asserts the standard of review is the "harmless beyond a reasonable doubt" standard prescribed in Chapman v. California (1967) 386 U.S. 18, 24, our Supreme Court has held the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review claims of evidentiary error under the "reasonable probability" standard of Watson, supra, 46 Cal.2d 818, 836. (People v. Marks (2003) 31 Cal.4th 197, 226-227.)
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Smith contends, and the People concede, that the trial court erred by sentencing him to two years in prison (the low term) instead of one year (one-third of the middle term) on his conviction of assault likely to produce great bodily injury. (See § 245, subd. (a)(1).) We agree.
The trial court sentenced Smith pursuant to section 1170.1, as it had the discretion to do, because although there were two cases, there was only one violent sex offense against one victim. (§ 667.6, subd. (c); People v. Belmontes (1983) 34 Cal.3d 335, 346; People v. Pelayo (1999) 69 Cal.App.4th 115, 123.) The court designated as the principal term the six years in prison imposed for the conviction of sexual penetration by a foreign object. (See § 289, subd. (a)(1)(A).) Once a principal term is selected, the subordinate term for each consecutively sentenced offense is generally one-third of the middle term prescribed for the offense. (§ 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655.) Thus, for the conviction of assault likely to produce great bodily injury, the trial court should have sentenced Smith to one year in prison. (See § 245, subd. (a)(1).) We therefore modify the sentence accordingly. (See People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045 [appellate court may correct unauthorized sentence].)
Smith also contends, and again the People concede, that the trial court did not award credit for the time Smith served in jail as a condition of probation in the case arising out of the assault on Wife. We agree Smith is entitled to credit for the time he actually spent in jail, plus time credits for work and good behavior. (§§ 2900.5, subd. (a), 4019; People v. Cooksey (2002) 95 Cal.App.4th 1407, 1414 ["credit is to be applied for time served on a subordinate term resulting from a probation violation"].) As the parties state, however, the record does not indicate the number of days of credit to which Smith is entitled. We therefore remand the matter for determination of these credits.
DISPOSITION
In D058388/RIF148690, the judgment is affirmed. In D058389/RIF135771, the sentence imposed on the conviction of assault likely to produce great bodily injury (§ 245, subd. (a)(1)) is reduced from two years to one year; the matter is remanded for the calculation and award of credits for time actually spent in jail as a condition of probation, plus time credits for work and good behavior; and in all other respects, the judgment is affirmed.
The trial court is directed to prepare an amended abstract of judgment in D058389/RIF135771 that reflects the reduction in the sentence imposed on the conviction of assault likely to produce great bodily injury and the credits awarded for time actually spent in jail as a condition of probation, plus time credits for work and good behavior; and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
IRION, J. WE CONCUR:
BENKE, Acting P. J.
MCINTYRE, J.