Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF143816. Ronald L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER, J.
A jury convicted defendant, Cresencio Solano, of robbery (count 1—Pen. Code, § 211); spousal abuse (count 3—§ 273.5); spousal battery, the lesser included offense of count 3 (count 3—§ 243, subd. (e)(1); and battery (count 4—§ 242). On appeal, defendant makes four contentions: (1) the court’s instruction of the jury with CALCRIM No. 318 (prior inconsistent statements) impermissibly allowed the jury to consider the victim’s prior statements for the truth of the matters asserted without explicitly requiring that it find the statements were inconsistent with her testimony at trial; (2) defendant’s constitutional due process rights were violated when he was shackled during trial; (3) the cumulative effect of the two aforementioned alleged errors resulted in the denial of defendant’s due process rights; and (4) the conviction for the lesser included offense on count 3 must be stricken because the jury convicted defendant of the greater offense. The People concede the last issue. We agree. Therefore, we shall direct the superior court to strike defendant’s conviction for spousal battery. In all other aspects the judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2008, defendant and the victim had been married approximately five years. They were having problems; defendant was staying at his mother’s house while the victim was living at her father’s home. On June 18, 2008, defendant called the victim to request that she pick him up at his mother’s home to take him to the doctor. She went to pick him up in her car. After she arrived, defendant drove his mother to work using the victim’s car. He then drove himself and the victim to a motel. Defendant informed the victim that he wished to get some rest and to spend some time alone with her.
The victim’s testimony on this point was inconsistent. At first she testified that they were living together at her father’s house. However, she later testified that defendant was staying with his mother because “He’s always been there all the time,” because they were having problems and because they were not together.
They obtained a room at the motel. Defendant got in bed to rest while the victim took a shower. While she was in the shower, defendant received a phone call during which he was informed that the victim was cheating on him. Defendant entered the bathroom screaming at her demanding to know with whom she was having an affair. The victim turned the water off and got out of the shower. She repeatedly denied cheating on him; however, this made him angrier until he grabbed her, pulled her by the hair, and hit her. He began beating her. The victim fell and hit her head on the tub. She eventually told him that she was cheating on him with a coworker so that defendant would stop hitting her.
The victim’s testimony on this point was inconsistent as well. At first she testified that defendant received the phone call while she was in the shower. Later she testified that defendant received the phone call a week before they obtained the motel room, but she also testified that the caller had left a voice-mail message on her phone the week earlier that she, just then in the motel room, told defendant to listen to.
Defendant stopped hitting the victim, but demanded that she take him to her coworker’s home. She did not know where her coworker lived so she took defendant to the store where both she and her coworker worked. Once they arrived, defendant asked the victim to call her coworker and have him meet her outside. Defendant hit her once on the ear while they were sitting in the parked car. The victim called her coworker at work and asked him to come out during his lunch break. As soon as defendant saw the coworker walk towards the car, he got out and confronted him. The victim saw defendant hit her coworker once and tell him he could keep the victim. Defendant told her he was going to take their kids and that she would never see them again. He then drove off in the car.
The victim later testified that she gave defendant permission to take their children. She also testified she informed a responding officer that she told defendant to go ahead and take the children because she did not believe he would.
The victim testified that title to the car was in both defendant’s and her names; however, it was the car she normally drove while defendant drove another vehicle. She testified she did not believe defendant needed her permission to take the car because they both drove it. The victim testified that she told a responding officer the car was in both of their names. Nonetheless, the victim also testified that, at the time of the incident, the car was actually in her father’s name, though defendant had made the down payment on it. However, they had subsequently changed title of the car from her father’s name to defendant’s and her names. The victim testified that although she informed the initial responding officer that the car was hers, in a later, face-to-face meeting with an officer, she reported that the car was both of theirs. The responding officer had checked the title of the vehicle at the time of the incident and found that it was in the victim’s father’s name; it had subsequently been changed to defendant’s and the victim’s names. Defendant’s taking of the vehicle formed the basis for an initial charge of unlawfully taking or driving a vehicle (count 2—Veh. Code, § 10851, subd. (a)), which was subsequently dismissed after the court granted defendant’s Penal Code section 995 motion as to that count.
While on the stand, the victim was asked whether she had her paycheck in the car on the day of the incident. She replied that it was in the car, that it was not in plain view, and that it was already endorsed, but that defendant had never asked her for the check. Nevertheless, she testified that she had told a responding officer that defendant took the check after threatening her. In a follow-up telephone conversation with an officer a few days later, the victim confirmed that defendant had demanded her paycheck. However, she later called the officer to correct the report. The victim testified that her allegation regarding the theft of her paycheck was a lie she told the officer because she was upset with defendant for hitting her and wanted to get him in trouble. She later had her work cancel the paycheck because she did not want defendant cashing it.
The victim also testified that two days prior to the current incident, she found defendant in the presence of another women with whom she believed he was having an affair. The two women were involved in a physical altercation in which the victim testified she incurred some of the injuries visible on the day of her clash with defendant.
The victim testified that she and defendant had subsequently gotten back together. She had informed the investigating officers that she wanted the charges dropped. She testified against her will, only because she was subpoenaed.
Corona Police Officer Barron Noah was dispatched to the victim’s work on the day of the incident. Officer Noah testified that upon meeting the victim, he noticed injuries consistent with having been punched: The victim had visible facial swelling, red marks, swelling around her right ear, blood on the inside of her ear, marks on both arms, and a cut lip, all of which she reported as being inflicted by defendant. She never reported that anyone else was responsible for any of her injuries. The victim requested medical attention so the officer called the paramedics, who took her to the hospital. Officer Noah interviewed her at the hospital. The victim reported the details of the incident substantially in accord with her testimony at trial, except that she reported defendant threatened her with unspecified harm unless she signed over her paycheck to him.
Corona Police Officer Bruce Bell interviewed the victim by telephone the day after the incident. He went over the police report with the victim to ensure that there were no errors. The only error she specified was that the report indicated defendant had hit her in the ear while they were driving on their way to her work, not when it actually occurred, which was while they were parked at her work. The victim confirmed that everything else in the report was correct. In particular, she confirmed that defendant had taken her check by threatening her. An appointment was set for June 23, 2008, for them to meet in person.
At the meeting on June 23, 2008, the victim informed the officer that she wished to change her version of events because she felt that she was responsible for the incident and her children kept asking where their father was. She believed the incident was a matter between her and defendant. The victim’s main focus at the meeting was getting the charges against defendant dropped. She stated her initial report, that she had not given defendant permission to take the children, was a lie. Nonetheless, the victim again confirmed that defendant had taken her paycheck by threat; he compelled her to sign it over to him. The victim then also explained that she had incurred some of her injuries from a fight with the other woman.
Officer Bell testified that he believed, based upon his training and experience, that the victim was “going sideways” or “minimizing” the incident, i.e., she was not being entirely truthful about the event. “Minimizing” is an attempt by the victim of domestic violence to lie or attempt to diminish the severity of an incident as initially reported in order to get the charges dropped. In domestic violence cases it is typical that victims recant or minimize; approximately 90 percent of victims do so. In Officer Bell’s experience, the first statement given by a victim is usually the most accurate.
DISCUSSION
A. Jury Instruction
Defendant contends that the trial court’s instruction of the jury with CALCRIM No. 318, rather than CALJIC No. 2.13, erroneously permitted the jury to consider the victim’s prior statements for the truth of the matters asserted, without requiring that it make a threshold determination that the statements were actually inconsistent with the victim’s trial testimony, as required by Evidence Code sections 770 and 1235. However, defendant effectually concedes that he did not object to the instruction below. Nevertheless, he maintains that this court may review the alleged error because it affected his substantial rights. The People contend that the jury was properly instructed with CALCRIM No. 318 and that the court appropriately made the prerequisite finding that the victim’s prior statements were inconsistent with her trial testimony. We hold that the court properly instructed the jury.
CALCRIM No. 318, as given to the jury in this case, read “You have heard evidence of a statement that a witness made before the trial. If you decide that the witness made those statements, you may use those statement in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in those earlier statements is true.”
Defendant’s claimed instructional error appears also to be an attack on the admissibility of the victim’s prior statements for the truth of the matters asserted. To that extent, defendant forfeited any error because he failed to object to the admissibility of all but one of the victim’s numerous prior statements on hearsay grounds, or any other grounds for that matter. (Evid. Code, § 353 [verdict may not be set aside on the grounds of an erroneous admission of evidence where the complaining party failed to timely and specifically object on the proper grounds]; People v. Bolin (1998) 18 Cal.4th 297, 320 [claim of erroneous admission of hearsay evidence forfeited by failing to object].) Thus, the jury was properly allowed to consider the victim’s prior statements for the truth of the matters asserted regardless of whether they were inconsistent with her trial testimony. Defendant’s concession that he failed to object to the court’s instruction of the jury with CALCRIM No. 318 gives this court discretionary, not mandatory, review over his contention. As defendant himself notes, Penal Code section 1259 establishes that an appellate court “may... review any instruction given, refused or modified even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Italics added.) While this court may review defendant’s claim, it is not obligated to do so. (People v. Rivera (1984) 162 Cal.App.3d 141, 146; People v. Stone (2008) 160 Cal.App.4th 323, 331.) Nonetheless, we shall address defendant’s argument.
Defendant objected only once to the admissibility of any of the victim’s prior statements. This occurred when the prosecution asked Officer Bell whether the victim told him that any of the contents of the report were incorrect. The trial court overruled defendant’s hearsay objection. The officer then testified regarding the apparent error as to when defendant hit the victim on the ear.
Defendant’s contention is that the jury, not the judge, must determine whether a witness’s prior statements are inconsistent with their testimony at trial before it may rely upon those statements for the truth of the matters asserted. He contends that the court should have so instructed the jury because, otherwise, it allowed the jury to make use of the victim’s prior statements for the truth of those statements even if they were inadmissible hearsay. He further contends that CALJIC No. 2.13 properly instructs the jury on this basis, but that CALCRIM No. 318 impermissibly does not. Therefore, defendant contends the court’s failure to properly instruct the jury prejudiced him. The People respond that the court properly determined the victim’s prior statements were inconsistent, accordingly, the People maintain the jury was properly instructed. We note initially that the court did not make a threshold determination the victim’s statements were inconsistent with her testimony at trial and, therefore, admissible as an exception to the hearsay rule. Defendant never objected on that basis, so the court was never presented with the opportunity, nor was it therefore required to make the threshold determination. Nevertheless, we hold that court properly instructed the jury with CALCRIM No. 318.
CALJIC No. 2.13 reads: “Evidence that at some other time a witness made a [statement] [or] [statements] that [is] [or] [are] inconsistent [or consistent ] with [his] [her] testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion.
We find People v. Solorzano (2007) 153 Cal.App.4th 1026, directly on point. There, the defendant made an identical claim. First, Solorzano reiterated that due to the California Judicial Council’s adoption of the CALCRIM instructions, they were the benchmark by which to adjudicate the correctness of jury instructions. (Id. at p. 1038.) Thus, CALCRIM No. 318 was presumptively correct. (Solorzano, at p. 1038.) Second, Solorzano found no discernible difference in meaning between CALCRIM No. 318 and CALJIC No. 2.13. (Solorzano, at pp. 1038-1039.) We agree. Contrary to defendant’s assertion, CALJIC No. 2.13 does not compel the jury to find a witness’s statements inconsistent with her trial testimony before it may use those statements to prove the truth of the matters therein asserted. Rather, the trial court is the proper arbiter of whether a prior statement is inconsistent and makes such a determination when and if a defendant objects to the statement on the basis of hearsay.
Defendant contends that since the victim admitted on the stand to making the prior statements asserting that defendant had stolen her paycheck, then avowed that she had been lying, her testimony was not actually inconsistent with her prior statements. Although it is true that the fact that the victim made those statements was not inconsistent with her trial testimony, the veracity of those statements was directly inconsistent with her testimony at trial. As a result, even if defendant had objected on hearsay grounds, the victim’s prior statements were properly admitted under the prior inconsistent statements exception to the hearsay rule.
The prior statements at issue here were patently inconsistent with the victim’s trial testimony, so even if defendant had objected or the court was required to instruct the jury, as defendant contends, no reasonable fact finder could find other than that the victim’s prior statements were inconsistent with her testimony at trial. The victim told Officer Noah that defendant saw her paycheck on the center console of her vehicle after he had already beaten her. Defendant told her to sign over the check or “‘you don’t know what’s going to happen to you.’” She told Officer Noah she signed the check and gave it to defendant because she was in fear for her life. She feared that more violence, in addition to that which had already occurred, would ensue. When she spoke with Officer Bell, who was following-up on the accuracy of the police report, she confirmed that defendant had obtained the check by threatening her. When she met Officer Bell in person, she again confirmed that defendant had taken the check from her by making threats: She told him that defendant told her to sign over the check or else something would happen to her. Only at trial did the victim state that the check was already endorsed, that it was not in plain view, and that it was simply in the car when defendant took it. This was clearly inconsistent with her prior statements. The court acted properly in instructing the jury with CALCRIM No. 318.
B. Shackling of Defendant
Prior to voir dire, defense counsel and the court engaged in the following brief colloquy:
“[Defense Counsel]:... We would just like to note that [defendant] is in a physical restraint and understanding we talked about it in chambers, defense would object to that. [¶]... [¶]
“The Court: The court house rules require that he be placed in a restraint, it’s the most un[ob]trusive restraint available and so it will be ordered, over objection.”
The chambers discussion regarding defendant’s restraint was apparently unreported. No other discussion of the restraint is reflected in the record. Defendant’s appellate counsel indicates in the opening brief that he has learned from discussions with defendant’s trial counsel that “‘[t]he restraint used was a knee brace, underneath [defendant’s] pant leg. It was not visible to the jury, but it made [defendant] look very stiff.... [Defendant] had no history of violence and had no conduct issues while in custody.’” Defendant’s appellate counsel also asserted in the opening brief that he would “be seeking to obtain a settled statement” regarding the in-chambers proceedings; however, insofar as we are aware, he has not done so. The People note, while not objecting, that information garnered from appellate counsel’s discussions with defendant’s trial counsel are not facts contained within the appellate record.
“[Federal] [d]ue process [requirements] prohibit[] shackling noticeable by a jury unless, in the sound exercise of the trial court’s discretion, case-specific concerns like ‘special security needs or escape risks’ pose a threat to an essential state interest so as to show ‘adequate justification’ for the shackling. [Citations.] If the requisite showing is not in the record, a trial court ordering such shackling commits an abuse of discretion, a ‘defendant need not demonstrate actual prejudice to make out a due process violation,’ and the error is reversible unless the prosecution proves beyond a reasonable doubt that the error did not contribute to the verdict. [Citations.]” (People v. Soukomlane (2008) 162 Cal.App.4th 214, 229, citing Deck v. Missouri (2005) 544 U.S. 622, 633, 635.)
Similarly, California law provides that “‘a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.’ [Citation.] Second, ‘in any case where physical restraints are used those restraints should be as unobtrusive as possible, although as effective as necessary under the circumstances,’ and a trial court should exercise discretion to use less drastic and less noticeable restraints when ‘safe to do so.’ [Citation.]” (People v. Soukomlane, supra, 162 Cal.App.4th at pp. 229-230, citing People v. Duran (1976) 16 Cal.3d 282, 290-291.)
“‘Manifest need’” arises only upon a showing of unruliness, an announced intention to escape, or “‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained....’ [Citation.] Moreover, ‘[t]he showing of nonconforming behavior... must appear as a matter of record.... The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.’ [Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, and superseded in part by statute on another ground in Jones v. Superior Court (1994) 26 Cal.App.4th 1202, 1210.)
We review a trial court’s decision to shackle a defendant for abuse of discretion; however, that discretion is “relatively narrow.” (People v. Cox, supra, 53 Cal.3d at p. 651.) “[T]he trial judge must make the decision to use physical restraints on a case-by-case basis. The court cannot adopt a general policy of imposing such restraints upon prison inmates charged with new offenses unless there is a showing of necessity on the record.” (People v. Duran, supra, 16 Cal.3d at p. 293; see also Deck v. Missouri (2005) 544 U.S. 622, 624 & 627.)
Clearly the trial court abused its discretion in restraining defendant in this case because it failed to demonstrate “adequate justification,” “manifest need,” or to conduct any individual analysis regarding the need to shackle this defendant at any point in time. Rather, the record indicates that the trial court merely determined that it was “court policy” to apparently shackle all defendants, regardless of their individual circumstances. Nevertheless, we hold that the error was harmless.
“[W]e have consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participate in his defense.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Assuming an abuse of discretion, a defendant can suffer no possible prejudice where there is no indication on the record that the jurors knew he was restrained, that he suffered any deleterious effects from the restraint, or that the restraint influenced his decision to testify. (People v. Wallace (2008) 44 Cal.4th 1032, 1051.)
Here, there is no evidence on the record that the jury saw the restraint, that defendant suffered any deleterious effect from the restraint, or that the restraint influenced his decision to testify. Indeed, the only evidence on the record regarding the nature of defendant’s restraint was the court’s statement that it was the most “un[ob]trusive restraint available....” There is no indication on the record how long the restraint was worn; thus, it is possible defendant was only so restrained during voir dire. Even if we consider the contents of defendant’s appellate counsel’s discussion with his trial counsel, which is outside the appellate record, we note that it was only averred that defendant was shackled using a knee brace worn underneath his pant leg, which was not visible to the jury. Defense counsel’s subjective assertion that it made defendant “look very stiff” in no way indicates that the jury knew defendant was restrained, that the restraint was in any way injurious to defendant, or that it influenced his decision not to testify. Indeed, the defense rested immediately after the People rested. If defendant wished to testify and defendant was still restrained, one would expect defense counsel to raise the issue of the restraint outside of the jury’s presence. However, defense counsel never did so.
Defendant asserts that, in order for the error to be deemed harmless, the People must prove beyond a reasonable doubt that none of the jurors knew defendant was restrained or that the restraint did not in some other manner impair his rights. However, as noted above, our state Supreme Court has repeatedly held that there must be evidence on the record that the jury saw the restraint or that the restraint somehow prejudiced defendant for any such error to be deemed anything but harmless. (People v. Anderson, supra, 25 Cal.4that p. 596 [error clearly harmless because defendant did not testify, no indication on the record that he would have but for his restraint, and no evidence jurors were aware of the restraint; People v. Wallace, supra, 44 Cal.4th at p. 1051 [same]; People v. Cox, supra, 53 Cal.3d at p. 652 [same].) Thus, the error was harmless.
C. Conviction for Spousal Battery.
Defendant contends that because he was convicted of the greater offense of spousal abuse, his conviction for the lesser offense of spousal battery must be stricken. The People agree, as do we.
Where a defendant is convicted of both the greater and a lesser included offense based upon the same conduct, the lesser included offense must be stricken because a defendant “cannot be convicted of both an offense and a lesser offense necessarily included within that offense.” (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1147; see People v. Pearson (1986) 42 Cal.3d 351, 355, People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Spousal battery (§ 243, subd. (e)(1)) is a lesser included offense of spousal abuse (§ 273.5, subd. (a).) (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1457.)
Here, the People sought to prove only one count of spousal abuse regarding the entire incident. The court instructed the jury on the requisite elements for finding the defendant guilty for either spousal abuse or the lesser included offense of spousal battery. When going over the verdict forms with the jury, the court stated, “Obviously, if you were to find the defendant guilty of [section] 273.5 [count 3], then you would also find the defendant guilty of [section] 243.” This may have inadvertently communicated to the jury that it must sign the verdict form for the lesser offense even though it had already determined defendant’s guilt for the greater crime. The jury foreman signed both verdict forms finding defendant guilty of the greater and lesser offenses of count 3. We shall direct the trial court to strike defendant’s conviction for spousal battery, the lesser included offense of the count 3 conviction for spousal abuse.
DISPOSITION
The trial court is directed to strike defendant’s conviction on count 3 for spousal battery (§ 243), the lesser included offense of his conviction for the count 3 offense of spousal abuse (§ 273.5). In all other respects, the judgment is affirmed.
We concur: RICHLI, Acting P. J., GAUT, J.